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Cornell University Law Library 




Cornell University Library 
GT6715.E8E92 1906 

The criminal prosecution and capital pun 

3 1924 021 236 017 

Cornell University 

The original of tliis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 


0a;ee/y.^l€>?^ .'C^.e^ 




By E. p. EVANS 






5 v- ^7 ^vT 

Printed in England 



Sources — Amira's distinction between retributive and pre- 
ventive processes — Addosio's incorrect designation of the 
latter as civil suits — Inconsistent attitude of the Church 
in excommunicating animals — Causal relation of crime 
to demoniacal possession — Squatter sovereignty of devils 
— Aura corrumpens — Diabolical infestation and lack 
of ventilation — " Bewitched kine "— Greek furies and 
Christian demons — Homicidal bees, laying cocks and 
crowing hens — Theory of the personification of animals 
— Beasts in Frankish, Welsh, and old German laws — 
Animal prosecutions and witchcraft — The Mosaic code 
in Christian courts — Pagan deities as demons — Born 
malefactors among beasts — The theory of punishment 
in modern criminology ... ... p. i 



Criminal prosecution of rats — Chassenee appointed to defend 
them — Report of the trial — Chassenee employed as 
counsel in other cases of this kind — His dissertation on 
the subject — Nature of his argument —Authorities and 
precedents — The withering of the fig-tree at Bethany 
justified and explained by Dr. Trench — Eels and blood- 
suckers in Lake Leman cursed by the Bishop of 
Lausanne with the approval of Heidelberg theologians 
— White bread turned black, and swallows, fish, and flies 

vi Contents 

destroyed by anathema — St. Pirminius expels reptiles 
— Vermifugal efficacy of St. Magnus' crosier — Papal 
execratories — Animals regarded by the law as lay 
persons, and not entitled to benefit of clergy — Methods 
of procedure — Jurisdiction of the courts — Records of 
judicial proceedings against insects — Important trial of 
weevils at St. Jean-de-Maurienne extending over more 
than eight months — Untenableness of Menebr&'s theory 
— Summary of the pleadings — Futile attempts at com- 
promise — Final decision doubtful — St. Eldrad and the 
snakes — Views of Thomas Aquinas — Distinction be- 
tween excommunication and anathema — " Sweet beasts 
and stenchy beasts '' — Animals as incarnations of devils 
— Their diabolical character assumed in papal formula 
for blessing water to kill vermin — Amusing treatise by 
Pfere Bougeant on this subject — All animals animated by 
devils, and all pagans and unbaptized persons possessed 
with them — Demons the real causes of diseases — 
Father Lohbauer's prescription in such cases — Formula 
of exorcism issued by Leo XIII. — Recent instances of 
demoniacal possession — Hoppe's psychological explana- 
tion of them — Charcot on faith-cures — Why not the duty 
of the Catholic Church to inculcate kindness to animals 
— Zoolatry a form of demonolatry — Gnats especially 
dangerous devils — Bodelschwingh's discovery of the 
bacillus infernalis — Gaspard Bailly's disquisition with 
specimens of plaints, pleas, etc. — Ayrault protests against 
such proceedings — Henimerlein's treatise on exorcisms 
— Criminal prosecution of field-mice — Vermin excom- 
municated by the Bishop of Lausanne — Protocol of 
judicial proceedings against caterpillars — Conjurers of 
cabbage-worms — Swallows proscribed by a Protestant 
parson — Custom of writing letters of advice to rats — 
Writs of ejectment served on them — Rhyming rats 
in Ireland — Ancient usage mentioned by Kassianos 
Bassos — Capital punishment of larger quadrupeds — 
Berriat- Saint-Prix's Reports and Researches — List of 
culprits — Beasts burned and buried alive and put to the 
rack — Swine executed for infanticide — Baill/s bill of 
expenses — An ox decapitated for its demerits — Punish- 
ment of buggery — Cohabitation of a Christian with a 
Jewess declared to be sodomy — Trial of a sow and six 
sucklings for murder — Bull sent to the gallows for 
killing a lad — A horse condemned to death for homicide 

Contents vii 

— A cock burned at the stake for the unnatural crime of 
laying an egg — Lapeyronie's investigation of the subject 
— Racine's satire on such prosecutions in Les Plaideurs; 
Lex talionis — Tit for tat the law of the primitive man 
and the savage — The application of this iron rule in 
Hebrew legislation — Flesh of a culprit pig not to be 
eaten — Athenian laws for punishing inanimate objects — 
Recent execution of idols in China — Russian bell 
sentenced to perpetual exile in Siberia for abetting in- 
surrection — Pillory for dogs in Vienna — Treatment 
prescribed for mad dogs in the Avesta — Cruelty of laws 
of talion and decrees of corruption of blood — Examples 
in ancient and modern legislation — Cicero approves of 
such penalties for political offences — Survival of this 
conception of justice in theology — Constitutio Criminalis 
Carolina — Lombroso opposed to trial by jury as a relic 
of barbarism — Corruption of Swiss cantonal courts — 
Deodand in English law — Applications of it in Mary- 
land and in Scotland — Blackstone's theory of it untenable 
— Penalties inflicted for suicide — Ancient legislation 
on this subject — Legalization of suicide — Abolition of 
deodands in England p. i8 



Recent change in the spirit of criminal jurisprudence — 
Mediaeval tribunals cut with the executioner's sword the 
intricate knots which the modern criminalist essays to 
untie — Phlebotomy a panacea in medicine and law — 
Restless ghosts of criminals who died unpunished — 
Execution of vampires and were-wolves — Case of a were- 
wolf who devoured little children " even on Friday " 
— Pope Stephen VI. brings the corpse of his predecessor 
to trial — Mediaeval and modern conceptions of culpa- 
bility — Problems of psycho-pathological jurisprudence — 
Degrees of mental vitiation — Italians pioneers in the 
scientific study of criminality — Effects of these specula- 
tions upon legislation — Barbarity of mediseval penal 
justice — Gradual abolition of judicial torture — Cruel 
sentence pronounced by Carlo Borromeo — " Blue Laws " 

viii Contents 

a great advance on contemporary English penal 'codes — 
Moral and penal responsibility — Atavism and criminality 
— Physical abnormities — Capacity and symmetry of the 
skull — Circumvolutions of the brain — Tattooing not a 
peculiarity of criminals, but simply an indication of low 
Eesthetic sense — Theories of the origin and nature of 
crime — Intelligence not always to be measured by the 
size of the encephalon — Remarkable exceptions in 
Gambetta, Bichat, Bischoff and Ugo Foscolo — Ad- 
vanced criminalists justly dissatisfied with the penal 
codes of to-day — Measures proposed by Lombroso and 
his school — Their conclusions not sustained by facts — 
Crime through hypnotic suggestion — Difficulty of de- 
fining insanity — Coleridge's definition too inclusive — 
Predestination and evolution — Criminality among the 
lower animals — Punishment preventive or retributive — 
Schopenhauer's doctrine of responsibility for character 
— Remarkable trial of a Swiss toxicomaniac, Marie 
Jeanneret — " Method in Madness " not uncommon — 
Social safety the supreme law— Application of this 
principle to " Cranks " — Spirit of imitation peculiarly 
strong in such classes — Contagiousness of crime — 
Criminology now in a period of transition ... p. 193 


A. De Actis Scindicorum Communitatis Sancti JuUiani 

agentium contra Animalia Bruta ad formam mus- 
carum volantia coloris viridis communi voce appellata 
Verpillions seu Amblevins p. 259 

B. Traite des Monitoires avec un Plaidoyer centre les 

Insectes par Spectable Gaspard Bailly ... p. 287 

C. Allegation, Replication, and Judgment in the process 

against field-mice at Stelvio in 1 519 p. 307 

D. Admonition, Denunciation, and Citation of the Inger by 

the Priest Bernhard Schmid in the name and by the 
authority of the Bishop of Lausanne in 1478 p. 309 

E. Decree of Augustus, Duke of Saxony and Elector, com- 

mending the action of Parson Greysser in putting the 
sparrows under ban, issued at Dresden in 1559 ^.311 

Contents ix 

F. Chronological List of Excommunications and Prose- 

cutions of Animals from the ninth to the nineteenth 
century p, 313 

G. Receipt, dated January 9, 1386, in which the hangman 

of Falaise acknowledges to have been paid by the 
Viscount of Falaise ten sous and ten deniers toumois 
for the execution of an infanticidal sow, and also ten 
sous tournois for a new glove /• 335 

H. Receipt, dated September 24, 1394, in which Jehan 
Micton acknowledges that he received the sum of fifty 
sous tournois from Thomas de Juvigney, Viscount of 
Mortaing, for having hanged a pig, which had killed and 
murdered a child in the parish of Roumaygne p. 336 

I. Attestation of Symon de Baudemont, Lieutenant of the 
Bailiff of Nantes and Meullant, made by order of the 
said bailiff and the king's proctor, on March 15, 1403, 
and certifying to the expenses incurred in executing a 
sow that had devoured a small child p. 338 

J. Receipt, dated October 16, 1408, and signed by Toustain 
Pincheon, jailer of the royal prisons in the town of 
Pont de Larche, acknowledging the payment of nine- 
teen sous and six deniers toumois for food furnished to 
sundry men and to one pig kept in the said prisons on 
charge of crime A 34° 

K. Letters Patent, by which Philip the Bold, Duke of 
Burgundy, on September 12, 1379, granted the petition 
of the Friar Humbert de Poutiers, Prior of the town 
of Saint-Marcel-lez-Jussey, and pardoned two herds of 
swine, which had been condemned to suffer the extreme 
penalty of the law as accomplices in an infanticide 
committed by three sows /• 342 

L. Sentence pronounced by the Mayor of Loens de Chartres 
on the i2th of September, 1606, condemning Guillaume 
Guyart to be hanged and burned together with a 
bitch... ... ... ... ... ... ... ^.344 

M. Sentence pronounced by the Judge of Savigny in 
January, 1457, condemning to death an infanticidal 
sow. Also the sentence of confiscation pronounced 
nearly a month later on the six pigs of the said sow 
for complicity in her crime p. 346 


N. Sentence pronounced, April i8, 1499, in a criminal 
prosecution instituted before the Bailiff of the Abbey 
of Josaphat, in the Commune of Sfeves, near Chartres, 
against a pig condemned to be hanged for having killed 
an infant. In this case the owners of the pig were 
fined eighteen francs for negligence, because the child 
was their fosterling i^- 352 

O. Sentence pronounced, June 14, 1494, by the Grand 
Mayor of the church and monastery of St. Martin de 
Laon, condemning a pig to be hanged and strangled 
for infanticide committed on the fee-farm of Clermont- 
lez-Montcomet p. 354 

P. Sentence pronounced, March 27, 1567, by the Royal 
Notary and Proctor of the Bailiwick and Bench of the 
Court of Judicatory of Senlis, condemning a sow with 
a black snout to be hanged for her cruelty and ferocity 
in murdering a girl of four months, and forbidding the 
inhabitants of the said seignioralty to let such beasts 
run at large on penalty of an arbitrary fine ... p. 356 

Q. Sentence of death pronounced upon a bull, May 16, 1499, 
by the Bailiff of the Abbey of Beauprd, for furiously 
killing Lucas Dupont, a young man of fourteen or 
fifteen years of age /• 3S8 

R. Scene from Racine's comedy Les Plaideurs, in which a 
dog is tried and condemned to the galleys for stealing 
a capon J>. 360 

S. Record of the decision of the Law Faculty of the 
University of Leipsic condemning a cow to death for 
having killed a woman at Machern near Leipsic, July 
20, 1621 p. 361 

Bibliography p. 362 

Index p. 373 



The present volume is the result of the revision 
and expansion of two essays entitled " Bugs and 
Beasts before the Law," and " Modern and 
Mediaeval Punishment," which appeared in 
The Atlantic Monthly, in August and Sep- 
tember 1884. Since that date the author has 
collected a vast amount of additional material 
on the subject, which has also been discussed 
by other writers in several publications, the 
most noteworthy of which are Professor Karl 
von Amira's Thierstrafen und Thierprocesse 
(Innsbruck, 1891), Carlo d'Addosio's Bestie 
Delinquenti (Napoli, 1892), and G. Tobler's 
Thierprocesse in der Schweis (Bern, 1893), 
but in none of these works, except the first- 
mentioned, are there any important statements 
of facts or citations of cases in addition to those 
adduced in the essays already mentioned, for 
which the writer was indebted chiefly to the 

The Criminal Prosecution and 

extensive and exceedingly valuable researches 
of Berriat-Saint-Prix and M. L. Menebr6a, and 
the Consilium Primum of Bartholomew Chas- 
senee, cited in the appended bibliography. 
Professor Von Amira is a very distinguished 
and remarkably keen-sighted jurisprudent and 
treats the matter exclusively from a jurispru- 
dential point of view, his main object being to 
discover some general principle on which to 
explain these strange phenomena, and thus to 
assign to them their proper place and true 
significance in the historical evolution of the idea 
of justice and the methods of attaining it by 
legal procedure. 

Von Amira draws a sharp line of technical 
distinction between Thierstrafen and Thierpro- 
cesse; the former were capital punishments in- 
flicted by secular tribunals upon pigs, cows, 
horses, and other domestic animals as a penalty 
for homicide ; the latter were judicial proceedings 
instituted by ecclesiastical courts against rats, 
mice, locusts, weevils, and other vermin in order 
to prevent them from devouring the crops, and to 
expel them from orchards, vineyards, and culti- 
vated fields by means of exorcism and excom- 
munication. Animals, which were in the service 
of man, could be arrested, tried, convicted and 
executed, like any other members of his house- 
hold ; it was, therefore, not necessary to summon 
them to appear in court at a specified time to 
answer for their conduct, and thus make them, 

Capital Punishment of Animals 3 

in the strict sense of the term, a party to the 
prosecution, for the sheriff had already taken 
them in charge and consigned them to the 
custody of the jailer. Insects and rodents, on 
the other hand, which were not subject to human 
control and could not be seized and imprisoned 
by the civil authorities, demanded the interven- 
tion of the Church and the exercise of its super- 
natural functions for the purpose of compelling 
them to desist from their devastations and to 
retire from all places devoted to the production 
of human sustenance. The only feasible method 
of staying the ravages of these swarms of noxious 
creatures was to resort to " metaphysical aid " 
and to expel or exterminate them by sacerdotal 
conjuring and cursing. The fact that it was 
customary to catch several specimens of the 
culprits and bring them before the seat of 
justice, and there solemnly put them to death 
while the anathema was being pronounced, 
proves that this summary manner of dealing 
would have been applied to the whole of them, 
had it been possible to do so. Indeed, the 
attempt was sometimes made to get rid of them 
by setting a price on their heads, as was the case 
with the plague of locusts at Rome in 880, when 
a reward was offered for their extermination, but 
all efforts in this direction proving futile, on 
account of the rapidity with which they propa- 
gated, recourse was had to exorcisms and be- 
sprinklings with holy water. 

4 The Criminal Prosecution and 

D'Addosio speaks of the actions brought 
against domestic animals for homicide as penal 
prosecutions, and those instituted against insects 
and vermin for injury done to the fruits of the 
field as civil suits (processi civili) ; but the latter 
designation is not correct in any proper sense of 
the term, since these actions were not suits to 
recover for damages to property, but had solely 
a preventive or prohibitive character. The 
judicial process was preliminary to the utterance 
of the malediction and essential to its efficacy. 
Before fulminating an excommunication the 
whole machinery of justice was put in motion 
in order to establish the guilt of the accused, 
who were then warned, admonished, and threat- 
ened, and, in cases of obduracy, smitten with 
the anathema maranatha and devoted to utter 
destruction. As with all bans, charms, exorcisms, 
incantations, and other magical hocus-pocus, the 
omission of any formality would vitiate the 
whole procedure, and, by breaking the spell, 
deprive the imprecation or interdiction of its 
occult virtue. Ecclesiastical thunder would thus 
be robbed of its fatal bolt and reduced to mere 
empty noise, the harmless explosion of a blank 

The Church was not wholly consistent in its 
explanations of these phenomena. In general 
the swarms of devouring insects and other noxi- 
ous vermin are assumed to have been sent at 
the instigation of Satan (instigante sathana, per 

Capital Punishment of Animals 5 

maleficium diabolicum), and are denounced and 
deprecated as snares of the devil and his satel- 
lites {diaboli et ministrorum insidias) ; again 
they are treated as creatures of God and agents 
of the Almighty for the punishment of sinful 
man ; from this latter point of view every effort 
to exterminate them by natural means would be 
regarded as a sort of sacrilege, an impious 
attempt to war upon the Supreme Being and to 
withstand His designs. In either case, whether 
they were the emissaries of a wicked demon 
or of a wrathful Deity, the only proper and per- 
missible way of relief was through the offices 
of the Church, whose bishops and other clergy 
were empowered to perform the adjurations and 
maledictions or to prescribe the penances and 
propitiations necessary to produce this result. If 
the insects were instruments of the devil, they 
might be driven into the sea or banished to some 
arid region, where they would all miserably 
perish; if, on the other hand, they were recog- 
nized as the ministers of God, divinely delegated 
to scourge mankind for the promotion of piety, it 
would be suitable, after they had fulfilled their 
mission, to cause them to withdraw from the 
cultivated fields and to assign them a spot, 
where they might live in comfort without injury 
to the inhabitants. The records contain in- 
stances of both kinds of treatment. 

It was also as a protection against evil spirits 
that the penalty of death was inflicted upon 

6 The Criminal Prosecution and 

domestic animals. A homicidal pig or bull was 
not necessarily assumed to be the incarnation of 
a demon, although it was maintained by eminent 
authorities, as we have shown in the present 
work, that all beasts and birds, as well as creep- 
ing things, were devils in disguise ; but the homi- 
cide, if it were permitted to go unpunished, was 
supposed to furnish occasion for the intervention 
of devils, who were thereby enabled to take pos- 
session of both persons and places. This belief 
was prevalent in the Middle Ages, and is still 
taught by the Catholic Church. In a little 
volume entitled Die Verwaltung des Exorcistats 
nach Massgabe der romischen Benediktionale, 
of which a revised and enlarged edition was 
published at Stuttgart in 1893 for the use of 
priests as a manual of instruction in performing 
exorcisms, it is expressly stated by the reverend 
author. Dr. Theobald Bischofberger, that a 
spot, where a murder or other heinous crime has 
been committed, if the said crime remains unde- 
tected or unexpiated, is sure to be infested by 
demons, and that the inmates of a house or 
other building erected upon such a site will be 
peculiarly liable to diabolical possession, how- 
ever innocent they may be personally. Indeed, 
the more pure and pious they are, the greater 
will be the efforts of the demons to enter into 
and annoy them. Not only human beings, but 
also all cattle after their kind, and even the 
fowls of the barnyard are subject to infernal 

Capital Punishment of Animals 7 

vexations of this sort. The infestation thus pro- 
duced may continue for centuries, and, although 
the property may pass by purchase or inheritance 
into other hands and be held successively by any 
number of rightful owners, the demons remain 
in possession unaffected by legal conveyances. 
If each proprietor imagines he has an exclusive 
title to the estate, he reckons without the host 
of devils, who exercise there the right of squatter 
sovereignty and can be expelled only by sacer- 
dotal authority. Dr. Bischofberger goes so far 
as to affirm that it behoves the purchaser of a 
piece of land to make sure that it is unen- 
cumbered by devils as well as by debts, other- 
wise he may have to suffer more from a demoniac 
lien than from a dead pledge or any other form 
of obligation in law. Information concerning 
the latter can be obtained at the registry of 
deeds, but it is far more difficult to ascertain 
whether the infernal powers have any claims 
upon it, since this knowledge can be derived only 
inferentially and indirectly from inquiries into 
the character of the proprietors for many genera- 
tions and must always rest upon presumptive 
evidence rather than positive proof. Our author 
does not hesitate to assert that houses which 
have been the abodes of pious people from time 
immemorial ought to have a higher market value 
than the habitations of notoriously wicked 
families. It is thus shown that " godliness is 
profitable " not only " unto all things," but also. 

8 The Criminal Prosecution and 

as mediaeval writers were wont to say, unto some 
things besides, wliich the apostle Paul in his 
admonitions to his "son Timothy" never 
dreamed of. We, are also told that the aura 
corrumpens resulting from diabolical infesta- 
tion imparts to the dwelling a peculiar taint, 
which it often retains for a long time after the 
demons have been cast out, so that sensitive 
persons cannot enter such a domicile without 
getting nervously excited, slightly dizzy and all 
in a tremble. The carnal mind, which is at 
enmity with all supernatural explanations at 
natural phenomena, would seek the source of 
such sensations in an aura corrumpens arising 
from the lack of proper ventilation, and find 
relief by simply opening the windows instead of 
calling in a priest with aspergills, and censers, 
and benedictiones locorum. 

We have a striking illustration of this truth 
in the frequent cases of " bewitched kine." 
European peasants often confine their cattle in 
stalls so small and low that the beasts have not 
sufficient air to breathe. The result is that a 
short time after the stalls are closed for the night 
the cattle get excited and begin to fret and fume 
and stamp, and are found in the morning weak 
and exhausted and covered with sweat. The 
peasant attributes these phenomena to witchcraft, 
and calls in an exorcist, who proceeds to expel 
the evil spirits. Before performing the ceremony 
of conjuration, he opens the doors and windows 

Capital Punishment of Animals 9 

and the admission of fresh air makes it quite 
easy to cast out the demons. A German veter- 
inarian, who reports several instances of this 
kind, tried in vain to convince the peasants that 
the trouble was due, not to sorcery, but to the 
absence of proper sanatory conditions, and 
finally, in despair of accomplishing his purpose 
in any other way, told them that if the windows 
were left open so that the witches could go in 
and out freely, the demons would not enter into 
the cattle. This advice was followed and the 
malign influence ceased. 

The ancient Greeks held that a murder, 
whether committed by a man, a beast, or an 
inanimate object, unless properly expiated, 
would arouse the furies and bring pestilence 
upon the land; the mediaeval Church taught the 
same doctrine, and only substituted the demons 
of Christian theology for the furies of classical 
mythology. As early as 864, the Council of 
Worms decreed that bees, which had caused the 
death of a human being by stinging him, should 
be forthwith suffocated in the hive before they 
could make any more honey, otherwise the entire 
contents of the hive would become demoniac- 
ally tainted and thus rendered unfit for use as 
food; it was declared to be unclean, and this 
declaration of impurity implied a liability to 
diabolical possession on the part of those who, 
like Achan, "transgressed in the thing ac- 
cursed." It was the same horror of aiding and 

lo The Criminal Prosecution and 

ibetting demons and enabling them to extend 
;heir power over mankind that caused a cock, 
ivhich was suspected of having laid the so-called 
' basilisk-egg," or a hen, addicted to the 
jminous habit of crowing, to be summarily put 
:o death, since it was only by such expiation that 
he evil could be averted. 

A Swiss jurist, Eduard Osenbriiggen (Studien 
',ur deutschen und schweizerischen Rechtsges- 
-.hichte. Schaffhausen, 1868, p. 139-149), en- 
leavours to explain these judicial proceedings 
)n the theory of the personification of animals. 
\s only a human being can commit crime and 
hus render himself liable to punishment, he 
;oncludes that it is only by an act of personifica- 
ion that the brute can be placed in the same 
ategory as man and become subject to the same 
)enalties. In support of this view he refers to 
he fact that in ancient and mediaeval times 
lomestic animals were regarded as members of 
he household and entitled to the same legal 
)rotection as human vassals. In the Prankish 
apitularies all beasts of burden or so-called 
uments were included in the king's ban and 
njoyed the peace guaranteed by royal author- 
ty : Ut jumenta pacem habent similiter per 
lannum regis. The weregild extended to them 
s it did to women and serfs under cover of the 
nan as master of the house and lord of the 
(lanor. The beste covert, to use the old legal 
•hraseology, was thus invested with human 

Capital Punishment of Animals 1 1 

rights and inferentially endowed with human 
responsibilities. According to old Welsh law 
atonement was made for killing a cat or dog 
belonging to another person by suspending the 
animal by the tail so that its nozzle touched the 
ground, and then pouring wheat over it until its 
body was entirely covered. Old Germanic law 
also recognized the competency of these animals 
as witnesses in certain cases, as, for example, 
when burglary had been committed by night, in 
the absence of human testimony, the house- 
holder was permitted to appear before the court 
and make complaint, carrying on his arm a dog, 
cat or cock, and holding in his hand three straws 
taken from the roof as symbols of the house. 
Symbolism and personification, as applied to 
animals and inanimate objects, unquestionably 
played an important part in primitive legislation, 
but this principle does not account for the excom- 
munication and anathematization of noxious 
vermin or for the criminal prosecution and 
capital punishment of homicidal beasts, nor does 
it throw the faintest light upon the origin and 
purpose of such proceedings. Osenbriiggen's 
statement that the cock condemned to be burned 
at Bale was personified as a heretic (Ketzer) and 
therefore sentenced to the stake, is a far-fetched 
and wholly fanciful explanation. As we have 
already seen, the unfortunate fowl, suspected of 
laying an egg in violation of its nature, was 
feared as an abnormal, inauspicious, and there- 

12 The Criminal Prosecution and 

fore diabolic creature ; the fatal cockatrice, which 
was supposed to issue from this egg when 
hatched, and the use which might be made of 
its contents for promoting intercourse with evil 
spirits, caused such a cock to be dreaded as a 
dangerous purveyor to His Satanic Majesty, but 
no member of the Kohlenberg Court ever 
thought of consigning Chanticleer to the flames 
as the peer of Wycliffe or of Huss in heresy. 

The judicial prosecution of animals, resulting 
in their excommunication by the Church or their 
execution by the hangman, had its origin in the 
common superstition of the age, which has left 
such a tragical record of itself in the incredibly 
absurd and atrocious annals of witchcraft. The 
same ancient code that condemned a homicidal 
ox to be stoned, declared that a witch should 
not be suffered to live, and although the Jewish 
lawgiver may have regarded the former enact- 
ment chiefly as a police regulation designed to 
protect persons against unruly cattle, it was, like 
the decree of death against witches, genetically 
connected with the Hebrew cult and had there- 
fore an essentially religious character. It was 
these two paragraphs of the Mosaic law that 
Christian tribunals in the Middle Ages were 
wont to adduce as their authority for prosecut- 
ing and punishing both classes of delinquents, 
although in the application of them they were 
undoubtedly incited by motives and influenced 
by fears wholly foreign to the mind of the 

Capital Punishment of Animals 13 

Levitical legislator. The extension of Christi- 
anity beyond the boundaries of Judaism and the 
conversion of Gentile nations led to its gradual 
but radical transformation. The propagation of 
the new and aggressive faith among the Greeks 
and Romans, and especially among the Indo-Ger- 
manic tribes of Northern Europe, necessarily 
deposed, degraded and demonized the ancestral 
deities of the proselytes, who were taught hence- 
forth to abjure the gods of their fathers and to 
denounce them as devils. Thus missionary zeal 
and success, while saving human souls from 
endless perdition, served also to enlarge the 
realm of the Prince of Darkness and to increase 
the number of his subjects and^ satellites. The 
new convert saw them with his mind's eye 
skulking about in obscure places, haunting 
forest dells and mountain streams by day, 
approaching human habitations by night and 
waiting for opportunities to lure him back to the 
old worship or to take vengeance upon him for 
his recreancy. Every untoward event furnished 
an occasion for their intervention, which could 
be averted or repelled only by the benedictions, 
exorcisms or anathemas of the Church. The 
ecclesiastical authorities were therefore directly 
interested in encouraging this superstitious belief 
as one of the chief sources of their power, and it 
was for this reason that diabolical agencies were 
assumed to be at work in every maleficent force 
of nature and to be incarnate in every noxious 

14 The Criminal Prosecution and 

creature. That this docrine is still held and this 
policy still pursued by the bishops and other 
clergy of the Roman CaFholic Church, no one 
familiar with the literature of the subject can 

Besides the manuals and rituals already cited, 
consult, for example, Die deutschen Bischofe und 
der Aberglaube : Eine Denkschrift von Dr. Fr. 
Heinrich Reusch, Professor of Theology in the 
University of Bonn, who vigorously protests 
against the countenance given by the bishops to 
the crassest superstitions. For specimens of the 
literature condemned by the German professor, 
but approved by the prelates and the pope, see 
such periodicals as Monat-Rosen su Ehren der 
Unbefleckten Gottes-Mutter Maria and Der 
Sendbote des gottlichen Herzens Jesu, published 
by Jesuits at Innsbruck in the Tyrol. 

It is a curious fact that the most recent and 
most radical theories of Juridical punishment, 
based upon anthropological, sociological and 
psychiaterical investigations, would seem to 
obscure and even to obliterate the line of distinc- 
tion between man and beast, so far as their 
capacity for committing crime and their moral 
responsibility for their misdeeds are concerned. 
According to Lombroso there are i delinquenti 
nati fra gli animali, beasts which are born 
criminals and wilfully and wantonly injure 
others of their kind, violating with perversity 
and premeditation the laws of the society in 

Capital Punishment of Aninaals 15 

which they live. Thus the modern criminologist 
recognizes the existence of the kind of malefactor 
characterized by Jocodus Damhouder, a Belgian 
jurist of the sixteenth century, as bestia laedens 
ex interna malitia; but although he might admit 
that the beast perpetrated the deed with malice 
aforethought and with the clear consciousness of 
wrong-doing, he would never think of bringing 
such a creature to trial or of applying to it the 
principle of retributive justice. This example 
illustrates the radical change which the theory of 
punishment has undergone in recent times and 
the far-reaching influence which it is beginning 
to exert upon penal legislation. In the second 
part of the present work the writer calls attention 
to this important revolution in the province of 
criminology, discussing as concisely as possible 
its essential features and indicating its general 
scope and practical tendencies, so far as they 
have been determined. It must be remembered, 
however, that, although the savage spirit of 
revenge, that eagerly demands blood for blood 
without the slightest consideration of the ana- 
tomical, physiological or psychological con- 
ditions upon which the commission of the specific 
act depends, has ceased to be the controlling 
factor in the enactment and execution of penal 
codes, the new system of jurisprudence, based 
upon more enlightened conceptions of human 
responsibility, is still in an inchoate state and 
very far from having worked out a satisfactory 

1 6 The Criminal Prosecution and 

solution of the intricate problem of the origin 
and nature of crime and its proper penalty. 

In 1386, an infanticidal sow was executed in 
the old Norman city of Falaise, and the scene was 
represented in fresco on the west wall of the 
Church of the Holy Trinity in that city. This 
curious painting no longer exists, and, so far as 
can be ascertained, has never been engraved. It 
has been frequently and quite fully described by 
different writers, and the frontispiece of the 
present volume is not a reproduction of the 
original picture, but a reconstruction of it accord- 
ing to these descriptions. It is taken from 
Arthur Mangin's L'Homme et la Bete (Paris, 
1872), of which all the illustrations are more or 
less fancy sketches. A full account of the trial 
and execution is given in the present volume. 

The iconographic edition of Jocodus Dam- 
houder's Praxis Rerum Criminalium (Antwerpix, 
1562) contains at the beginning of each section 
an engraving representing the perpetration of 
the crimes about to be discussed. That at the 
head of the chapter entitled " De Damno Pecu- 
ario " is a lively picture of the injuries done by 
animals and rendering them liable to criminal 
process; it is reproduced facing page 161 of the 
present work. 

The most important documents, from which 
our knowledge of these judicial proceedings is 
derived, are given in the Appendix, together with 
a complete list of prosecutions and excommunica- 

Capital Punishment of Animals 17 

tions during the past ten centuries, so far as we 
have been able to discover any record of them . 

The bibliography, although making no claim 
to be exhaustive, comprises the principal works 
on the subject. Articles and essays, which are 
merely a rehash of other publications, it has not 
been deemed necessary to mention. Such, for 
example, are " Criminalprocesse gegen Thiere," 
in Miscellen aus der neuesten ausldndischen 
Literatur (Jena, 1830, LXV. pp. 152-55), Jor- 
gensen's Nogle Frugter af mil Otium (Kopen- 
hagen, 1834, PP- 216-23); Cretella's " Gli Ani- 
mali sotto Processo," in Fanfulla della Domenica 
(Florence, 1891, No. 65), all three based upon 
the archival researches of Berriat-Saint-Prix and 
M^nabr^a, and Soldan's "La Personification 
des Animaux in Helvetia," in Monatsschrift der 
Studentenverbindung Helvetia (VII. pp. 4-17), 
which is a mere restatement of Osenbriiggen's 

In conclusion the author desires to express his 
sincere thanks to Dr. Laubmann, Director of the 
Munich Hof- und Staatsbibliothek, as well as to 
the other custodians of that library, for their 
uniform kindness and courtesy in placing at his 
disposal the printed and manuscript treasures 
committed to their keeping. 

1 8 The Criminal Prosecution and 



It is said that Bartholomew Chassehee,^ a 
distinguished French jurist of the sixteenth 
century (born at Issy-l'Ev^que in 1480), made 
his reputation at the bar as counsel for some rats, 
which had been put on trial before the ecclesi- 
astical court of Autun on the charge of having 
feloniously eaten up and wantonly destroyed the 
barley-crop of that province. On complaint 
formally presented by the magistracy, the official 
or bishop's vicar, who exercised jurisdiction in 
such cases, cited the culprits to appear on a 
certain day and appointed Chassen6e to defend 

In view of the bad repute and notorious guilt 
of his clients, Chassenee was forced to emjploy 
all sorts of legal shifts and chicane, dilatory 
pleas and other technical objections, hoping 
thereby to find some loophole in the meshes of 
the law through which the accused might escape, 

T ' ^HJ^j"?,^ "* ^*° spelled Chassanfe and Chasseneux. 
In the Middle Ages, and even as late as the end of the 
eighteenth century, the orthography of proper names was 
very uncertain. 

Capital Punishment of Animals 19 

or at least to defer and mitigate the sentence of 
the judge. He urged, in the first place, that 
inasmuch as the defendants were dispersed over 
a large tract of country and dwelt in numerous 
villages, a single summons was insufficient to 
notify them all; he succeeded, therefore, in 
obtaining a second citation, to be published from 
the pulpits of all the parishes inhabited by the 
said rats. At the expiration of the considerable 
time which elapsed before this order could be 
carried into effect and the proclamation be duly 
made, he excused the default or non-appearance 
of his clients on the ground of the length and 
difficulty of the journey and the serious perils 
which attended it, owing to the unwearied 
vigilance of their mortal enemies, the cats, who 
watched all their movements, and, with fell 
intent, lay in wait for them at every corner and 
passage. On this point Chassen^e addressed the 
court at some length, in order to show that if 
a person be cited to appear at a place, to which 
he cannot come with safety, he may exercise the 
right of appeal and refuse to obey the writ, even 
though such appeal be expressly precluded in the 
summons. The point was argued as seriously as 
though it were a question of family feud between 
Capulet and Montague in Verona or Colonna 
arid Orsini in Rome. 

At a later period of his life Chassen^e was 
reminded of the legal principle thus laid down 
and urged to apply it in favour of clients more 

20 The Criminal Prosecution and 

worthy of its protection than a horde of vagrant 
rodents. In 1540 he was president of the judicial 
assembly known as the Parliament of Provence 
on a memorable occasion when the iniquitous 
measure for the extirpation of heresy by exter- 
minating the Waldenses in the villages of 
Cabri^res and Merindol was under discussion. 
One of the members of the tribunal, a gentleman 
from Aries, Renaud d'Alleins, ventured to 
suggest to the presiding officer that it would be 
extremely unjust to condemn these unfortunate 
heretics without granting them a hearing and 
permitting an advocate to speak in their defence, 
so that they might be surrounded by all the safe- 
guards of justice, adding that the eminent jurist 
had formerly insisted upon this right before the 
court of Autun and maintained that even animals 
should not be adjudged and sentenced without 
having a proper person appointed to plead their 
cause. Chassen6e thereupon obtained a decree 
from the king commanding that the accused 
Waldenses should be heard; but his death, 
which occurred very soon afterwards, changed 
the state of affairs and prevented whatever good 
effects might have been produced by this simple 
act of justice. [Cf . Desnoyers : Recherches, etc. 
(vide Bibliography), p. 18.] 

In the report of the trial published in the Themis 
Junsconsulte for 1820 (Tome I. pp. 194 sqq.) 
by Berriat Saint-Prix, on the authority of the 
celebrated Jacques Auguste De Thou, President 

Capital Punishment of Animals 21 

of the Parliament of Paris, the sentence pro- 
nounced by the official is not recorded. But 
whatever the judicial decision may have been, 
the ingenuity and acumen with which Chassen^e 
conducted the defence, the legal learning which 
he brought to bear upon the case, and the elo- 
quence of his plea enlisted the public interest 
and established his fame as a criminal' lawyer and 
forensic orator. 

Chassen^e is said to have been employed in 
several cases of this kind, but no records of 
them seem to have been preserved, although it is 
possible that they may lie buried in the dusty 
archives of some obscure provincial town in 
France, once the seat of an ecclesiastical tribunal. 
The whole subject, however, has been treated 
by him exhaustively in a book entitled Consilium 
primum, quod tractatus jure did potest, propter 
multiplicem et reconditam doctrinam, ubi lucu- 
lenter et accurate tractatur quaestio ilia: De 
excommunicatione animalium. insectorum. This 
treatise, which is the first of sixty-nine consilia, 
embodying opinions on various legal questions 
touching the holding and transmission of pro- 
perty, entail, loans, contracts, dowries, wills, and 
kindred topics, and which holds a peculiar place 
in the history of jurisprudence, was originally 
published in 1531, and reprinted in 1581, and 
again in 1588. The edition referred to in the> 
present work is the first reprint of 1581, a copy 
of which is in the Royal Court and State Library 
of Munich. 

22 The Criminal Prosecution and 

This curious dissertation originated, as it 
appears, in an application of the inhabitants of 
Beaune to the ecclesiastical tribunal of Autun for 
a decree of excommunication against certain 
noxious insects called huberes or hurebers, pro- 
bably a kind of locust or harvest-fly. The 
request was granted, and the pernicious creatures 
were duly accursed. Chassen^e now raises the 
query whether such a thing may be rightfully 
and lawfully done (sed an recte et de jure fieri 
possit), and how it should be effected. "The 
principal question," he says, "is whether one 
can by injunction cause such insects to withdraw 
from a place in which they are doing damage, 
or to abstain from doing damage there, under 
penalty of anathema and perpetual malediction. 
And although in times past there has never been 
any doubt on this point, yet I have thought that 
the subject should be thoroughly examined anew, 
lest I should seem to fall into the vice censured 
by Cicero (De Off. I. 6), of regarding things 
which we do not know as if they were well under- 
stood by us, and therefore rashly giving them 
our assent." He divides his treatise into five 
parts, or rather discusses the subject under five 
heads : " First, lest I may seem to discourse to 
the populace, how are these our animals called in 
the Latin language ; secondly, whether these our 
animals can be summoned; thirdly, whether they 
can be summoned by procurators, and, if they are 
cited to appear personally, whether they can 
appear by proxy, i. e. through procurators ap- 

Capital Punishment of Animals 23 

pointed by the judge who summons them; 
fourthly, what judge, whether layman or 
ecclesiastic, is competent to try them, and how 
he is to proceed against them and to pass and 
execute sentence upon them ; fifthly, what con- 
stitutes an anathema and how does it differ from 
an excommunication." Chassen^e's method of 
investigation is not that of the philosophic 
thinker, who marshals facts under general laws 
and traces them to rational causes, but combines 
that of the lawyer, who quotes precedents and 
examines witnesses, with that of the theologian, 
who balances authorities and serves us with texts 
instead of arguments. He scrupulously avoids 
all psychological speculation or metaphysical 
reasoning, and simply aims to show that animals 
have been tried, convicted, and sentenced by 
civil and ecclesiastical courts, and that the com- 
petence of these tribunals has been generally 

The documentary evidence adduced is drawn 
from a great variety of sources : the scriptures 
of the Old and New Testament, pagan poets 
and philosophers, patristic theologians and 
homilists, mediaeval hagiologists, Virgil, Ovid, 
Pliny, Cicero, Cato, Aristotle, Seneca, Silius 
Italicus, Boethius, Gregory the Great, Pico della 
Mirandola, the laws of Moses, the prophecies of 
Daniel, and the Institutes of Justinian are alike 
laid under contribution and quoted as of equal 
authority. All is fish that comes to his net out 

24 The Criminal Prosecution and 

of his erudition, be it salmon or sea-urchin. If 
twelve witnesses can be produced in favour of 
a statement, and only two against it, his reason 
bows to the will of the majority, and accepts 
the proposition as proved. It must be added, 
however, to his credit, that he proceeds in this 
matter with strict impartiality and perfect recti- 
tude, takes whatever evidence is at hand, and 
never tries to pack the witness-box. 

His knowledge of obscure and now utterly for- 
gotten authors, secular and ecclesiastic, is 
immense. Like so many scholars of his day he 
was prodigiously learned, without being remark- 
able for clearness or originality of thought. 
Indeed, the vastness of his erudition seems rather 
to have hampered than helped the vigorous 
growth of his intellectual faculties. He often 
indulges in logical subtilties so shallow in their 
speciousness, that they ought not to deceive the 
veriest smatterer in dialectics; and the reader is 
constantly tempted to answer his laboured argu- 
mentations, as Tristram Shandy's Uncle Toby 
did the lucubrations of Corporal Trim, by 
"whistling half-a-dozen bars of Lillibullero." 
The examples he adduces afford striking illustra- 
tions of the gross credulity to which the strongly 
conservative, precedent-mongering mind of the 
jurisconsult is apt to fall an easy prey. The 
habit of seeking knowledge and guidance exclu- 
sively in the records and traditions of the past, in 
the so-called " wisdom of ages," renders him 

Capital Punishment of Animals 25 

peculiarly liable to regard every act and utterance 
of antiquity as necessarily wise and authoritative. 

In proof of the power of anathemas, Chassen^e 
refers to the cursing of the serpent in the Garden 
of Eden, causing it to go upon its belly for all 
time; David's malediction of the mountains of 
Gilboa, so that they had neither rain nor dew; 
God's curse upon the city of Jericho, making its 
strong walls fall before the blasts of trumpets; 
and in the New Testament the withered fig-tree 
of Bethany. The words of Jesus, " Every tree 
that bringeth not forth good fruit is hewn down 
and cast into the fire," he interprets, not merely 
as the best means of getting rid of a cumberer of 
the orchard, but as a condemnation and punish- 
ment of the tree for its delinquencies, and adds : 
" If, therefore, it is permitted to destroy an 
irrational thing, because it does not produce 
fruit, much more is it permitted to curse it, since 
the greater penalty includes the less (cum si liceat 
quid est plus, debet licere quid est minus). 

An English professor of divinity, Richard 
Chevenix Trench, justifies the withering of the 
fruitless fig-tree on the same ground or, at least, 
by a similar process of reasoning: "It was 
punished, not for being without fruit, but for 
proclaiming by the voice of those leaves that it 
had such; not for being barren, but for being 
false." According to this exegesis, it was the 
telling of a wilful lie that " drew on it the curse." 
The guilty fig is thus endowed with a moral 

26 The Criminal Prosecution and 

character and made clearly conscious of the crime 
for which it suffered the penalty of death : 
" Almost as soon as the word of the Lord was 
spoken, a shuddering fear may have run through 
all the leaves of the tree, which was thus stricken 
at the heart." As regards the culpability and 
punishableness of the object, the modern divine 
and the mediaeval Jurist occupy the same stand- 
point; only the latter, with a stricter judicial 
sense, insists that there shall be no infliction of 
punishment until the malefactor has been con- 
victed by due process of law, and that he shall 
enjoy all the safeguards which legal forms and 
technicalities have thrown around him and under 
whose covert even the vilest criminal has the 
right to take refuge. The Anglican herme- 
neutist, on the contrary, would justify the curse 
and admit the validity of the anathema, although 
it was only the angry expression of an unreason- 
able impatience disappointed in not finding fruit 
at the wrong season, " for the time of figs was 
not yet." 

A curious and characteristic specimen of the 
absurd and illogical inferences, which Chassen^e 
is constantly deducing from his texts, is the use 
he makes of the passage in Virgil's first Georgic, 
in which the poet remarks that " no religion has 
forbidden us to draw off water-courses for irrigat- 
ing purposes, to enclose crops with fences, or to 
lay snares for birds," all these things being 
essential to successful husbandry. But from the 

Capital Punishment of Animals 27 

right to snare birds, our jurisprudent infers the 
right to excommunicate them, since " no snares 
are stronger than the meshes of an anathema." 
Far-fetched deductions and wretched twaddle of 
this sort fill many pages of the famous lawyer's 

Coming down to more recent times, Chassen^e 
mentions several instances of the effectiveness of 
anathemas, accepting as convincing testimony 
the ecstacies of saints and the extravagant state- 
ments of hagiologists without the slightest ex- 
pression of doubt as to the truth of these legends. 
Thus he relates how a priest anathematized an 
orchard, because its fruits tempted the children 
of his parish and kept them away from mass. 
The orchard remained barren until, at the solici- 
tation of the Duchess of Burgundy, the ban was 
removed. In like manner the Bishop of Lau- 
sanne freed Lake Leman from eels, which had 
become so numerous as seriously to interfere with 
boating and bathing ; on another occasion in the 
year 1451 the same ecclesiastic expelled from the 
waters of this lake an immense number of enor- 
mous blood-suckers, which threatened to destroy 
all the large fish and were especially fatal to 
salmon, the favourite article of food on fast-days. 
This method of procedure was both cheap and 
effective and, as Felix Malleolus informs us in his 
Tractatus de Exorcisms (I), received the appro- 
bation of all the learned doctors of the Univer- 
sity of Heidelberg : omnes studii Heydelber- 

28 The Criminal Prosecution and 

gensis Doctores hujusmodi ritus videntes et 
legentes consenserunt. By the same agency an 
abbot changed the sweet white bread of a Count 
of Toulouse, who abetted and protected heresy, 
into black, mouldy bread, so that he, who would 
fain feed souls with corrupt spiritual food, was 
forced to satisfy his bodily hunger with coarse 
and unsavoury provender. No sooner was the 
excommunication removed than the bread re- 
sumed its original purity and colour. Egbert, 
Bishop of Trier, anathematized the swallows, 
which disturbed the devotions of the faithful by 
their chirping and chattering, and sacrilegiously 
defiled his head and vestments with their drop- 
pings, when he was officiating at the altar. He 
forbade them to enter the sacred edifice on pain 
of death ; and it is still a popular superstition at 
Trier, that if a swallow flies into the cathedral, 
it immediately falls to the ground and gives up 
the ghost. Another holy man, known as John 
the Lamb, cursed the fishes, which had incurred 
his anger, with results equally fatal to the finny 
tribe. It is also related of the honey-tongued St. 
Bernard, that he excommunicated a countless 
swarm of flies, which annoyed the worshippers 
and officiating priests in the abbey church of 
Foigny, and lo, on the morrow they were, like 
Sennacherib's host, "all dead corpses." William, 
Abbot of St. Theodore in Rheims, who records 
this miraculous event, states that as soon as the 
execration was uttered, the flies fell to the floor 

Capital Punishment of Animals 29 

in such quantities that they had to be thrown out 
with shovels (palis ejicientes). This incident, he 
adds, was so well known that the cursing of the 
flies of Foigny became proverbial and formed the 
subject of a parable. [Vita S. Bernardi, auctore 
Wilhelmo abbate S. Thod. Rhem. I. 11.] 
According to the usual account, the malediction 
was not so drastic in its operation and did not 
cause the flies to disappear until the next day. 
The rationalist, whose chill and blighting breath 
is ever nipping the tender buds of faith, would 
doubtless suggest that a sharp and sudden frost 
may have added to the force and efficacy of the 
excommunication. The saint resorted to this 
severe and summary measure, says the monkish 
chronicler, because the case was urgent and " no 
other remedy was at hand." Perhaps this lack 
of other means of relief may refer to the absence 
of " deacons with fly-flaps," who, according to a 
contemporary writer, were appointed "to drive 
away the flies when the Pope celebrateth." 

The island Reichenau in Lake Constance, 
which derives its name from its fertility and is 
especially famous for the products of its vine- 
yards and its orchards, was once so infested by 
venomous reptiles as to be uninhabitable by 
human beings. Early in the eighth century, 
as the legend goes, it was visited by St. Pir- 
minius, and no sooner had he set foot upon it 
than these creatures all crawled and wriggled 
into the water, so that the surface of the lake was 

30 The Criminal Prosecution and 

covered for three days and three nights with 
serpents, scorpions and hideous worms. Peculiar 
vermifugal efficacy was ascribed to the crosier 
of St. Magnus, the apostle of Algau, which was 
preserved in the cloister of St. Mang at Fiisseri in 
Bavaria, and from 1685 to 1770 was repeatedly 
borne in solemn procession to Lucerne, Zug, 
Schwyz and other portions of Switzerland for 
the expulsion and extermination of rats, mice, 
cockchafers and other insects. Sometimes 
formulas of malediction were procured directly 
from the pope, which, like saints' curses, could 
be applied without legal formalities. Thus 
in 1660 the inhabitants of Lucerne paid four 
pistoles and one Roman thaler for a document of 
this kind; on Nov. 15, 173 1, the municipal 
council of Thonou in Savoy resolved to join with 
other parishes of that province to obtain from 
Rome an excommunication against insects, the 
expenses for which are to be assessed pro rata; ^ 
in 1740 the commune of Piuro purchased from 
His Holiness a similar anathema; in the 
same year the common council of Chiavenna 
discussed the propriety of applying to Rome 
for an execratory against beetles and bears; 
and in December 1752 it was proposed by 
the same body to take like summary measures 

' " Item : a 6t6 dflibdrd que la villa sejoindra aux paroisses 
de cette province qui.voudront obtenir de Rome una excom- 
munication contre les insects et que Ton contribuera aux 
frais au pro rata." 

Capital Punishment of Animals 31 

in order to get rid of a pest of rodents. In 
1729, 1730 and 1749 the municipal council of 
Lucerne ordered processions to be made on St. 
Magnus' Day from the Church of St. Francis to 
Peter's Chapel for the purpose of expelling 
weevils. This custom was observed annually 
from 1749 to 1798. The pompous ceremony has 
been superseded in Protestant countries by an 
officially appointed day of fasting and prayer. 

In his " First Counsel " Chassen^e not only 
treats of methods of procedure, and gives forms 
of plaints to be drawn up and tendered to the 
tribunal by the injured party, as well as useful 
hints to the pettifogger in the exercise of his 
tortuous and tricky profession, but he also dis- 
cusses many legal principles touching the 
jurisdiction of courts, the functions of judges, 
and other characteristic questions of civil, 
criminal, and canonical law. Animals, he says, 
should be tried by ecclesiastical tribunals, except 
in cases where the penalty involves the shedding 
of blood. An ecclesiastical judge is not 
competent in causa sanguinis, and can impose 
only canonical punishments, although he may 
have jurisdrction in temporal matters and punish 
crimes not involving a capital sentence. [Nam 
judex ecclesiasticus in causa sanguinis non est 
competens judex, licet habeat juris dictionem in 
temporatibus et possit crimina poenam sanguinis 
non existentia (exigentia is obviously the correct 
reading) castigare. Cons. prim. IV. § 5.] For 

32 The Criminal Prosecution and 

this reason the Church never condemned 
heretics to death, but, having decided that they 
should die, gave them over to the secular power 
for formal condemnation, usually under the 
hollow and hypocritical pretence of recommend- 
ing them to mercy. In the prosecution of 
animals the summons was commonly published 
from the parish pulpit and the whole judicial 
process bore a distinctively ecclesiastical 
character. In most cases the presiding judge or 
official was the vicar of the parish acting as the 
deputy of the bishop of the diocese. Occasion- 
ally the curate officiated in this capacity. Some- 
times the trial was conducted before a civil 
magistrate under the authority of the Church, 
or the matter was submitted to the adjudication 
of a conjurer, who, however, appointed two 
proctors to plead respectively for the plaintiff 
and the defendant and who rendered his 
verdict in due legal form. Indeed, the word 
"conjurer" seems to have been used as a 
popular designation of the person, whether 
priest or layman, who exercised judicatory 
functions in such trials, probably because, as a 
rule, the sentence could be executed only by 
conjuration or the invocation of supernatural 

Another point, which strikes us very comic- 
ally, but which had to be decided before the trial 
could proceed, was whether the accused were to 
be regarded as clergy or laity. Chassenee 

Capital Punishment of Animals 33 

thinks that there is no necessity of testing each 
■individual case, but that animals should be 
looked upon as lay persons. This, he declares, 
should be the general presumption ; but if any 
one wishes to affirm that they have ordinem 
dericatus and are entitled to benefit of clergy, 
the burden of proof rests upon him and he is 
bound to show it (deberet estud probare). Pro- 
bably our jurist would have made an exception 
in favour of the beetle, which entomologists call 
clerus.; it is certain, at any rate, that if a bug 
bearing this name had been brought to trial, the 
learning and acuteness displayed in arguing the 
point in dispute would have been astounding. 
We laugh at the subtilties and quiddities of 
mediaeval theologians, who seriously discussed 
such silly <ju€Stio.ns as the digestibility of the 
consecrated elements in the eucharist; but the 
importance attached to these trivialities was not 
so much the peculiarity of a single profession as 
the mental habit of the age, the result of schol- 
astic training and scholastic methods of investi- 
gation, which tainted law no less than divinity. 
Nevertheless the ancillary relations of all other 
sciences and disciplines to theology render the 
latter chiefly responsible for this fatal tendency. 
Chassen^e also makes a distinction between 
punitive and preventive purposes in the prosecu- 
tion of animals, between inflicting penalties 
upon them for crimes committed and taking pre- 
cautionary measures to keep them from doing 

34 The Criminal Prosecution and 

damage. By this means he seeks to evade the 
objection, that animals are incapable of commit- 
ting crimes, because they are not endowed with 
rational faculties. He then proceeds to show 
that " things not allowable in respect to crimes 
already committed are allowable in respect to 
crimes about to be committed in order to prevent 
them." Thus a layman may not arrest an 
ecclesiastic for a delict fully consummated, but 
may seize and detain him in order to hinder the 
consummation of a delict. In such cases, an 
inferior may coerce and correct a superior; even 
an irrational creature may put restraint upon a 
human being and hold him back from wrong- 
doing. In illustration of this legal point he 
cites an example from Holy Writ, where 
" Balaam, the prophet and servant of the Most 
High, was rebuked by a she-ass." 

Chassen^e endeavours to clinch his argument 
as usual by quoting biblical texts and adducing 
incidents from legendary literature. The pro- 
vince of zoo-psychology, which would have 
furnished him with better material for the eluci- 
dation of his subject, he leaves untouched, 
simply because it was unknown to him. If crime 
consists in the commission of deeds hurtful to 
other sentient beings, knowing such actions to 
be wrong, then the lower animals are certainly 
guilty of criminal offences. It is a well-estab- 
lished fact, that birds, beasts and insects, living 
together in communities, have certain laws. 

Capital Punishment of Animals 35 

which are designed to promote the general wel- 
fare of the herd, the flock or the swarm, and the 
violation of which by individual members they 
punish corporally or capitally as the case may 
require. It is likewise undeniable, that domestic 
animals often commit crimes against man and 
betray a consciousness of the nature of their acts 
by showing fear of detection or by trying to 
conceal what they have done. Man, too, recog- 
nizes their moral responsibility by inflicting 
chastisement upon them, and sometimes feels 
justified in putting incorrigible offenders, a 
vicious bull, a thievish cat or a sheep-killing 
dog, summarily to death. Of course this kind 
of punishment is chiefly preventive, nevertheless 
it is provoked by acts already perpetrated and 
is not wholly free from the element of retribu- 
tive justice. Such a proceeding, however, is 
arbitrary and autocratic, and if systematically 
applied to human beings would be denounced 
as intolerable tyranny. Chassen^e insists that 
under no circumstances is a penalty to be im- 
posed except by judicial decision — nam poena 
nunquam imponitur, nisi lex expresse dicat — 
and in support of this principle refers to the 
apostle Paul, who declares that " sin is not 
imputed when there is no law." He appears to 
think that any technical error would vitiate the 
whole procedure and reduce the ban of the 
Church to mere brutum fulmen. If he lays so 
great stress upon the observance of legal forms. 

36 The Criminal Prosecution and 

which in the criminal prosecution of briate 
beasts strike us as the caricature and farce of 
justice, it is because he deems them essential to 
the effectiveness of an excommunication. The 
slightest mispronunciation of a word, an in- 
correct accentuation or false intonation in utter- 
ing a spell suffices to dissolve the charm and 
nullify the occult workings of the magic. The 
Jack of a single link breaks the connection and 
destroys the binding force of the chain ; every- 
Hhing must be "well-thought, well-said and 
well-done," not ethically, but ritually, as pre- 
scribed in the old Avestan formula : humata 
hukhta huvarshta. All the mutterings and 
posturings, which accompany the performance 
of a Brahmanical sacrifice, or a Catholic mass, 
or any other kind of incantation have their sig- 
nificance, and none of them can be omitted with- 
out marring the perfection of the ceremonial and 
impairing its power. An anathema of animals 
pronounced in accordance with the sentence 
passed upon them by a tribunal, belongs to the 
same category of conjurations and is rendered 
nugatory by any formal defect or judicial irregu- 

Sometimes the obnoxious vermin were 
generously forewarned. Thus the grand-vicars 
of Jean Rohin, Cardinal Bishop of Autun, 
having been informed that slugs were devastat- 
ing several estates in different parts of his 
diocese, on the 17th of August, 1487, ordered 

Capital Punishment of Animals 37 

public processions to be made for three days 
in every parish, and enjoined upon the said' 
slugs to quit the territory within this period 
under penalty of being accursed. On the 8th 
of September, 1488, a similar order was issued 
at Beaujeu. The curates were charged to make 
processions during the offices, and' the slugs 
were warned three times to cease from vexiing 
the people by corroding and consuming the 
herbs of the fields and the vines, and to depart; 
" and if they do not heed this our command, we 
excommunicate them and smite them with our 
anathema." In 1516, the official of Troyes pro- 
nounced sentence on certain insects {adversus 
brncos seu eurucas vel alia non dissimilia ani- 
malia, Gullice urebecs, probably a species of 
curculio), which laid waste the vines, and' 
threatened them with anathema, unless they 
should disappear within six days. Here it is 
expressly stated that a counsellor was assigned 
to the accused, and a prosecutor heard in behalf 
of the aggrieved inhabitants. As a means of 
rendering the anathema more effective, the 
people are also urged to be prompt and honest 
in the payment of tithes. Chassen^e, too, 
endorses this view, and in proof of its correct- 
ness refers to Malachi, where God promises to 
rebuke the devourer for man's sake, provided all 
the' tithes are brought into the storehouse. 

The archives of the old episcopal city of St. 
Jean-de-Maurienne contain the original records 

38 The Criminal Prosecution and 

of legal proceedings instituted against some 
insects, which had ravaged the vineyards of St. 
Julien, a hamlet situated on the route over Mt. 
Cenis and famous for the excellence of its 
vintage. The defendants in this case were a 
species of greenish weevil (charan9on) known to 
entomologists as rychites auratus, and called by 
different names, amblevin, b6che, verpillion, in 
different provinces of France. 

Complaint was first made by the wine-growers 
of St. Julien in 1545 before Frangois Bonnivard, 
doctor of laws. The procurator Pierre Falcon 
and the advocate Claude Morel defended the 
insects, and Pierre Ducol appeared for the plain- 
tiffs. After the presentation and discussion of the 
case by both parties, the official, instead of pass- 
ing sentence, issued a proclamation, dated the 
8th of May, 1546, recommending public prayers 
and beginning with the following characteristic 
preamble: "Inasmuch as God, the supreme 
author of all that exists, hath ordained that the 
earth should bring forth fruits and herbs (animas 
vegetativas), not solely for the sustenance of 
rational human beings, but likewise for the 
preservation and support of insects, which fly 
about on the surface of the soil, therefore it 
would be unbecoming to proceed with rashness 
and precipitance against the animals now actually 
accused and indicted; on the contrary, it would 
be more fitting for us to have recourse to the 
mercy of heaven and to implore pardon for our 

Capital Punishment of Animals 39 

sins." Then follow instructions as to the manner 
in which the public prayers are to be conducted 
in order to propitiate the divine wrath. The 
people are admonished to turn to the Lord with 
pure and undivided hearts (ex toto et puro corde), 
to repent of their sins with unfeigned contrition, 
and to resolve to live henceforth justly and 
charitably, and above all to pay tithes. High 
mass is to be celebrated on three consecutive 
days, namely on May 20th, 21st, and 22nd, and 
the host to be borne in solemn procession with 
songs and supplications round the vineyards. 
The first mass is to be said in honour of the Holy 
Spirit, the second in honour of the Blessed 
Virgin, and the third in honour of the tutelar 
saint of the parish. At least two persons of each 
household are required to take part in these 
religious exercises. A proces-verbal, signed by 
the curate Romanet, attests that this programme 
was fully carried out and that the insects soon 
afterwards disappeared. 

About thirty years later, however, the scourge 
was renewed and the destructive insects were 
actually brought to trial. The proceedings are 
recorded on twenty-nine folia and entitled : 
De actis scindicorum communitatis Sancti Julli- 
ani agentium contra animalia bruta ad formam 
muscarum volantia colons viridis communi voce 
appellata verpillions seu amblevins. The docu- 
ments, which are still preserved in the archives 
of St. Julien, were communicated by M. Victor 

40 The Criminal Prosecution aad 

Dalbane, secretary of the commune, to M. L^on 
Menebr^a, who printed them in the appendix to 
his volume : De I'origine de la forme et de 
I' esprit des jugements rendus au moyen-dge 
contre les animaux. Chambery, 1846. This 
treatise appeared originally in the twelfth tome of 
the Memoires de la Societe Royale Academique 
de Savoie. 

It may be proper to add that M6nebr^a's theory 
of " the spirit, in which these judgments against 
animals were given," is wholly untenable. He 
maintains that "these procedures formed 
originally only a kind of symbol intended to 
revive the sentiment of justice among the masses 
of the people, who knew of no right except might 
and of no law except that of intimidation and 
violence. In the Middle Ages, when disorder 
reigned supreme, when the weak remained with- 
out support and without redress against the 
strong, and; property was exposed to all sorts of 
attacks and all forms of ravage and rapine, there 
was something indescribably beautiful in the 
thought of assimilating the insect of the field to 
the masterpiece of creation and putting them on 
an equality before the law. If man should be 
taught to respect the home of the worm, how 
much more ought he to regard that of his fellow- 
man and learn to rule in equity." 

This explanation is very fine in sentiment, but 
expresses a modern, and not a mediasval way of 
thinking. The penal prosecution of animals. 

Capital Punishmefit of Animals 41 

which prevailed during the Middle Ages,, was by 
no, means peculiar to that period, but has been 
fpequently practised by primitive peoples and 
savage tribes; neither was it designed to incul- 
cate any such moral lesson as is here suggested, 
nor did it produce any such desirable result. 
So far from originating in a delicate and sensi- 
tive sense of justice, it waSj as will be more fully 
shown hereafter, the ouicome of an extremely 
crude, obtuse, and barbaric sense of justice. It 
was the product of a social state, in which dense 
ignorance was governed by brute force, and is 
not to be considered as a reaction and protest 
agairast club-law, which it really tended to foster 
by making a travesty of the administration of 
justice and thus turning it into ridicule. It was 
also in the interest of ecclesiastical dignities to 
keep up this parody and perversion of a sacred 
and fundamental institute of civil society, since 
it strengthened their influence and extended their 
authority by subjecting even the caterpillar and 
the canker-worm to their dominion and control. 
But to return to the records of the trial. On 
the 13th of April, 1587, the case was laid 
before " his most reverend lordship, the prince- 
bishop of Maurienne, or the reverend lord his 
vicar-general and official " by the syndics and 
procurators, Frangois Amenet and Petremand 
Bertrand, who, in the name of the inhabitants of 
St. Julien, presented the following statement and 
petition : " Formerly by virtue of divine services 

42 The Criminal Prosecution and 

and earnest supplications the scourge and in- 
ordinate fury of the aforesaid animals did cease ; 
now they have resumed their depredations and 
are doing incalculable injury. If the sins of men 
are the cause of this evil, it behoveth the repre- 
sentatives of Christ on earth to prescribe such 
measures as may be appropriate to appease the 
divine wrath. Wherefore we the afore-men- 
tioned syndics, Franfois Amenet and Petremand 
Bertrand, do appear anew {ex integro) and 
beseech the official, first, to appoint another 
procurator and advocate for the insects in place 
of the deceased Pierre Falcon and Claude 
Morel, and secondly, to visit the grounds and 
observe the damage, and then to proceed with 
the excommunication." 

In compliance with this request, the dis- 
tinguished Antoine Filliol was appointed pro- 
curator for the insects, with a moderate fee 
(salario moderato), and Pierre Rembaud their 
advocate. The parties appeared before the 
official on the 30th day of May and the case 
was adjourned to the 6th of June, when the 
advocate, Pierre Rembaud, presented his answer 
to the declaration of the plaintiffs, showing that 
their action is not maintainable and that they 
should be nonsuited. After approving of the 
course pursued by his predecessor in office, he 
affirms that his clients have kept within their 
right and not rendered themselves liable to 
excommunication, since, as we read in the sacred 

Capital Punishment of Animals 43 

book of Genesis, the lower animals were created 
before man, and God said to them : Let the 
earth bring forth the living creature after his 
kind, cattle and creeping thing, and beast of the 
earth after his kind ; and he blessed them saying, 
Be fruitful and multiply and fill the waters of 
the seas, and let fowl multiply in the earth. Now 
the Creator would not have given this command, 
had he not intended that these creatures should 
have suitable and sufficient means of support; 
indeed, he has expressly stated that to every 
thing that creepeth upon the earth every green 
herb has been given for meat. It is therefore 
evident that the accused, in taking up their abode 
in the vines of the plaintiffs, are only exercising 
a legitimate right conferred upon them at the 
time of their creation. Furthermore, it is absurd 
and unreasonable to invoke the power of civil 
and canonical law against brute beasts, which are 
subject only to natural law and the impulses of 
instinct. The argument urged by the counsel 
for the plaintiffs, that the lower animals are made 
subject to man, he dismisses as neither true in 
fact nor pertinent to the present case. He 
suggests that the complainants, instead of in- 
stituting judicial proceedings, would do better 
to entreat the mercy of heaven and to imitate the 
Ninevites, who, when they heard the warning 
voice of the prophet Jonah, proclaimed a fast 
and put on sackcloth. In conclusion, he de- 
mands that the petition of the plaintiffs be dis- 

44 The Criminal Prosecution and 

missed, the raonitorium revoked and annulled, 
and all further proceedings stayed, to which end 
the gracious office of the judge is humbly im- 
plored (humiliter imflorato benigno officio 

The case was adjourned to the 12th and 
finally to the 19th of June, when Petre- 
mand Bertrand, the prosecuting attorney, pre- 
sented a lengthy replication, of which the defend- 
ants' advocate demanded a copy with due time 
for deliberation. This request led to a further 
adjournment till the 26th of June, but as 
this day turned out to be a dies feriatus or holi- 
day, no business could be transacted until the 
27th, when the advocate of the commune, 
Fran9ois Fay (who seems to have taken the 
place of Amenet, if he be not the same person), 
in reply to the defendants' plea, argued that, 
although the animals were created before man, 
they were intended to be subordinate to him 
and subservient to his use, and that this was, 
indeed, the reason of their prior creation. They 
have no raison d'etre except as they minister to 
man, who was made to have dominion over them, 
inasmuch as all things have been put under his 
feet, as the Psalmist asserts and the apostle Paul 
reiterates. On this point, he concludes, our 
opponent has added nothing refutatory of the 
views, which have been held from time im- 
memorial by our ancestors ; we need only refer to 
the opinions formerly expressed by the honour- 

Capital Punishment of Animals 45 

able Hippolyte Ducol as satisfadtory. The 
advocate for the defence merely remarked that 
he had not yet received the document ordered 
on the 19th of June, and the further con- 
sideration of the case was postponed till the 
4th of July. Antoine Filliol then made a 
rejoinder to the plaintiffs' replication, denying 
that the subordination of the lower animals to 
man involves the right of excommunicating them, 
and insisting upon his former position, which the 
opposing counsel had not even attempted to dis- 
prove, namely, that the lower animals are subject 
solely to natural law, " a law originating in the 
eternal reason and resting upon a basis as im- 
mutable as that of the divine law of .revelation, 
since they are derived from the same source, 
namely, the will and power of God." It is 
evident, he adds, that the action brought by the 
plaintiffs is not maintainable and that judgment 
should be given accordingly. 

On the 1 8th of July, the same parties 
appear before the official of St. Jean-de-Mauri- 
enne. The procurator of the insects demands 
that the case be closed and the plaintiffs debarred 
from drawing up any additional statements or 
creating any further delay by the introduction 
of irrelevant matter, and requests that a decision 
be rendered on the documents and declarations 
already adduced. The prosecuting attorney, 
whose policy seems to have been to keep the suit 
pending as long as possible, applies for a new 
term (evlmm terminum), which was granted. 

46 The Criminal Prosecution and 

Meanwhile, in view of the law's long, delay, 
other measures were taken for the speedier 
adjustment of the affair by compromise.. On 
the 29th of June, 1587, a public meeting was 
called at noon immediately after mass on the 
great square of St. Julien, known as Parloir 
d'Amont, to which all hinds and habitants 
(manants et habitants) were summoned by the 
ringing of the church bell to consider the pro- 
priety and necessity of providing for the said 
animals a place outside of the vineyards of St. 
Julien, where they might obtain suiScient sus- 
tenance without devouring and devastating the 
vines of the said commune. This meeting 
appears to have been held by the advice of the 
plaintiffs' advocate, Frangois Fay, and at the 
suggestion of the official. A piece of ground 
in the vicinity was selected and set apart as a sort 
of insect enclosure, the inhabitants of St. Julien, 
however, reserving for themselves the right to 
pass through the said tract of land, " without 
prejudice to the pasture of the said animals," and 
to make use of the springs of water contained 
therein, which are also to be at the service of the 
said animals; they reserve furthermore the right 
of working the mines of ochre and other mineral 
colours found there, without doing detriment to 
the means of subsistence of said animals, and 
finally the right of taking refuge in this spot 
in time of war or in case of like distress. The 
place chosen is called La Grand Feisse and 
described with the exactness of a topographical 

Capital Punishment of Animals 47 

survey, not only as to its location and dimen- 
sions, but also as to the cliaracter of its foliage 
and herbage. The assembled people vote to 
make this appropriation of land and agree to 
draw up a conveyance of it "in good form and 
of perpetual validity," provided the procurator 
and advocate of the insects may, on visitation 
and inspection of the ground, express themselves 
satisfied with such an arrangement; in witness 
whereof the protocol is signed " L. Prunier, 
curial," and stamped with the seal of the com- 

But this attempt of the inhabitants to conciliate 
the insects and to settle their differences by 
mutual concessions did not put an end to the 
litigation. On the 24th of July, an " Extract 
from the Register of the Curiality of St. 
Julien," containing the proceedings of the 
public meeting,, was submitted to the court by 
Petremand Bertrand, procurator of the plaintiffs, 
who called attention to the very generous offer 
made by the commune and prayed the official to 
order the grant to be accepted on the conditions 
specified, and to cause the defendants to vacate 
the vineyards and to forbid them to return to the 
same on pain of excommunication. Antoine 
Filliol, procurator of the insects, requested a 
copy of the proces-verbal and time for delibera- 
tion. The court complied with this request and 
adjourned the case till " the first juridical day 
after the harvest vacation," which fell on the 

48 The Criminal Prosecution and 

nth of August, and again by common consent 
till the 20th of the same month. 

At this time, Charles Emanuel I., Duke of 
Savoy, was preparing to invade the Marquisate 
of Saluzzo, and the confusion caused by the 
expedition of troops over Mt. Cenis interfered 
with the progress of the trial, which was post- 
poned till the 27th of August, and again, 
since the passage of armed men was still going 
on (actento transitu armigerorum), till the 3rd 
of September, when Antoine Filliol declarea tfeat 
he could not accept for his clients the offer made 
by the plaintiffs, because the place was sterile and 
neither sufficiently nor suitably supplied with 
food for the support of the said animals; he 
demanded, therefore, that the proposal be rejected 
and the action dismissed with costs to the com- 
plainants (petit agentes repelli cum expensis). 
The " egregious Petremand Bertrand," in behalf 
of the plaintiffs, denies the correctness of this 
statement and avers that the spot selected and 
set apart as an abode for the insects is admirably 
adapted to this purpose, being full of trees and 
shrubs of divers kinds, as stated in the convey- 
ance prepared by his clients, all of which he is 
ready to verify. He insists, therefore, upon an 
adjudication in his favour. The official took the 
papers of both parties and reserved his decision, 
appointing experts, who should in the meantime 
examine the place, which the plaintiffs had 
proffered as an asylum for the insects, and 

Capital Punishment of Animals 49 

submit a written report upon the fitness of the 

The final decision of the case, after such care- 
ful deliberation and so long delay, is rendered 
doubtful by the unfortunate circumstance that 
the last page of the records has been destroyed 
by rats or bugs of some sort. Perhaps the prose- 
cuted weevils, not being satisfied with the results 
of the trial, sent a sharp-toothed delegation into 
the archives to obliterate and annul the judgment 
of the court. At least nothing should be thought 
incredible or impossible in the conduct of 
creatures, which were deemed worthy of being 
summoned before ecclesiastical tribunals and 
which succeeded as criminals in claiming the 
attention and calling forth the legal learning and 
acumen of the greatest jurists of their day. 

In the margin of the last page are some 
interesting items of expenses incurred : " pro visi- 
tatione III flor.," by which we are to understand 
three florins to the experts, who were appointed 
to visit the place assigned to the insects; then 
" solver unt scindici Sancti Julliani incluso pro- 
cessu Animalium sigillo ordinationum et pro 
copia que competat in processu dictorum Anima- 
lium omnibus inclusis XVI flor.," which may be 
summed up as sixteen florins for clerical work 
including seals; finally, " itevi pro sportulis do- 
viini vicarii III flor.," three florins to the vicar, 
who acted as the bishop's official and did not 
receive a regular fee, but was not permitted to go 

50 The Criminal Prosecution and 

away empty-handed. The date, which follows, 
Dec. 20, 1587, may be assumed to indicate the 
time at which the trial came to an end, after a 
pendency of more than eight months. {Vide 
Appendix A.) 

In the legal proceedings just described, two 
points are presented with great clearness and 
seem to be accepted as incontestable : first, the 
right of the insects to adequate means of sub- 
sistence suited to their nature. This right was 
recognized by both parties ; even the prosecution 
did not deny it, but only maintained that they 
must not trespass cultivated fields and destroy 
the fruits of man's labour. The complainants 
were perfectly willing to assign to the weevils an 
uncultivated tract of ground, where they could 
feed upon such natural products of the soil as 
were not due to human toil and tillage. Secondly, 
no one appears to have doubted for a moment 
that the Church could, by virtue of its anathema, 
compel these creatures to stop their ravages and 
cause them to go from one place to another. 
Indeed, a firm faith in the existence of this power 
was the pivot on which the whole procedure 
turned, and without it, the trial would have been 
a dismal farce in the eyes of all who took part 
in it. 

It is related in the chronicles of an ancient 
abbey (Le Fere Rochex: Gloire de I'Abbaye et 
Vallee de la Novalaise), that St. Eldrad com- 
manded the snakes, which infested the environs 

Capital Punishment of Animals 51 

of a priory in the valley of Briangon, to depart, 
and, taking a staff in his hand, conducted them 
to a desert place and shut them up in a cave, 
where they all miserably perished. Perhaps the 
serpent, which suffered Satan to take possession 
of its seductive form and thus played such a 
fatal part in effecting the fall of man and in intro- 
ducing sin into the world, may have been re- 
garded as completely out of the pale and protec- 
tion of law, and as having no rights which an 
ecclesiastical excommunicator or a wonder-work- 
ing saint would be bound to respect. As a rule, 
however, such an arbitrary abuse of miraculous 
power to the injury or destruction of God's 
creatures was considered illegal and unjustifiable, 
although irascible anchorites and other holy men 
under strong provocation often gave way to it. 
Mediaeval jurists frowned upon summary mea- 
sures of this sort, just as modern lawyers con- 
demn the practice of lynch-law as mobbish 
and essentially seditious, and only to be excused 
as a sudden outburst of public indignation at 
some exceptionally brutal outrage. 

Properly speaking, animals cannot be excom- 
municated, but only anathematized; just as 
women, according to old English law, having 
no legal status of their own and not being bound 
in frankpledge as members of the decennary or 
tithable community, could not be outlawed, but 
only " waived " or abandoned. This form of 
ban, while differing theoretically from actual 

52 The Criminal Prosecution and 

outlawry, was practically the same in its effects 
upon the individual subjected to it. Excom- 
munication is, as the etymology of the word 
implies, the exclusion from the communion of the 
Church and from whatever spiritual or temporal 
advantages may accrue to a person from this 
relation. It is one of the consequences of an 
anathema, but is limited in its operation to 
members of the ecclesiastical body, to which the 
lower animals do not belong. This was the 
generally accepted view, and is the opinion main- 
tained by Gaspard Bailly, advocate and coun- 
cillor of the Sovereign Senate of Savoy, in his 
Traite des Monitolres, avec un Plaidoyer contre 
les Insects, printed at Lyons in 1668, but it has 
not always been held by writers on this subject, 
some of whom do not recognize this distinction 
between anathema and excommunication on the 
authority of many passages of Holy Writ, 
affirming that, as the whole creation was cor- 
rupted by the fall, so the atonement extends 
to all living creatures, which are represented 
as longing for the day of their redemption and 

One of the strong points made by the counsel 
for the defence in prosecutions of this kind was 
that these insects were sent to punish man for his 
sins, and should therefore be regarded as agents 
and emissaries of the Almighty, and that to 
attempt to destroy them or to drive them away 
would be to fight against God (s'en prendre a 

Capital Punishment of Animals 53 

Dieu). Under such circumstances, the proper 
thing to do would be, not to seelc legal redress 
and to treat the noxious creatures as criminals, 
but to repent and humbly to entreat an angry 
Deity to remove the scourge. This is still the 
standpoint of Christian orthodoxy, Protestant as 
well as Catholic, and the argument applies with 
equal force to the impious and atheistic substitu- 
tion of Paris green and the chlorate of lime for 
prayer and fasting as exterminators of potato- 
bugs. The modern, like the mediaeval horti- 
culturist may ward off devouring vermin from his 
garden by the use of ashes, but he strews them 
on his plants instead of sprinkling them on his 
own head, and thus indicates to what extent 
scientific have superseded theological methods in 
the practical affairs of life. 

Thomas Aquinas, the "angelic doctor," in 
his Summa Theologies raises the query, whether 
it is permissible to curse irrational creatures 
(utrum Hceat irrationabiles creaturas adjurare). 
He states, in the first place, that curses and bless- 
ings can be pronounced only upon such things as 
are susceptible of receiving evil or good impres- 
sions from them, or in other words, upon sentient 
and rational beings, or upon irrational creatures 
and insentient things in their relation to rational 
beings, so that the latter are the objects ulti- 
mately aimed at and favourably or unfavourably 
affected. Thus God cursed the earth, because it 
is essential to a man's subsistence; Jesus cursed 

54 The Criminal Prosecution and 

the barren fig-tree symbolizing the Jews, who 
made a great show of leafage in the form of rites 
and ceremonies, but bore no fruits of righteous- 
ness; Job cursed the day on which he was born, 
because he took from his mother's womb the 
taint of original sin ; David cursed the rocks and 
mountains of Gilboa, because they were stained 
with the blood of " the beauty of Israel " ; in like 
manner the Lord sends locusts and blight and 
mildew to destroy the harvests, because these are 
intimately connected with the happiness of man- 
kind, whose sins he wishes to punish. 

It is laid down as a legal maxim by mediaeval 
jurisprudents that no animal devoid of under- 
standing can commit a fault (nee enim potest 
animal injuriam fecisse quod sensu caret). This 
doctrine is endorsed by the great theologian and 
scholastic Thomas of Aquino. If we regard the 
lower animals, he says, as creatures coming from 
the hand of God and employed by him as 
agents for the execution of his judgments, then 
to curse them would be blasphemous; if, on the 
other hand, we curse them secundem se, i. e. 
merely as brute beasts, then the malediction is 
odious and vain and therefore unlawful {est 
odiosum et vanum et per consequens illicitum). 
There is, however, another ground, on which the 
right of excommunication or anathematization 
may be asserted and fully vindicated, namely, 
that the lower animals are satellites of Satan 
" instigated by the powers of hell and therefore 

Capital Punishment of Animals 55 

proper to be cursed," as the Doctor angelicus 
puts it. Chassen^e refers to this op'inion in the 
treatise already cited (I. § 75), and adds "the 
anathema then is not to be pronounced against 
the animals as such, but should be hurled in- 
ferentially (per modum conclnsionis) at the devil, 
who makes use of irrational creatures to our 
detriment." This notion seems to have been 
generally accepted in the Middle Ages, and the 
fact that evil spirits are often mentioned in the 
Bible metaphorically or symbolically as animals 
and assumed to be incarnate in the adder, the 
asp, the basilisk, the dragon, the lion, the levia- 
than, the serpent, the scorpion, etc., was con- 
sidered confirmatory of this view. 

But not all animals were regarded as diabolical 
incarnations ; on the contrary, many were revered 
as embodiments and emblems of divine perfec- 
tions. In a work entitled Le Liure du Roy 
Modus et de la Reyne Racio (The Book of King 
Mode and Queen Reason), which, as the colo- 
phon records, was "printed at Chambery by 
Anthony Neyret in the year of grace one thou- 
sand four hundred and eighty-six on the thirtieth 
day of October," King Mode discourses on 
falconry and venery in general. Queen Reason 
brings forward, in reply to these rather con- 
ventional commonplaces, "several fine moral- 
ities," and dilates on the natural and mystic 
qualities of animals, which she divides into two 
classes, sweet beasts {bestes doulces) and stenchy 

56 The Criminal Prosecution and 

beasts (bestes puantes). Foremost among the 
sweet beasts stands that which Milton character- 
izes as 

" Goodliest of all the forest, hart and hind." 

According to the Psalmist, the hart panting 
after the water-brooks represents the soul thirst- 
ing for the living God and is the type of religious 
ardour and aspiration. It plays an important 
part in the legends of saints, acts as their guide, 
shows them where holy relics are concealed, and 
causes St. Eustace and St. Hubert to abandon 
the chase and to lead lives of pious devotion by 
appearing to them with a luminous cross between 
its antlers. The ten branches of its horns 
symbolize the ten commandments of the Old 
Testament and signify in the Roman ritual the 
ten fingers of the outstretched hand of the priest 
as he works the perpetual miracle of transub- 
stantiation of the eucharist. 

Chief of the stenchy beasts is the pig. In 
paganism, which to the Christians was merely 
devil-worship, the boar was an object of peculiar 
adoration ; for this reason the farrow of the sow 
is supposed to number seven shotes, correspond- 
ing to the seven deadly sins. To the same class 
of offensive beasts belong the wolf, typical of bad 
spiritual shepherds, and the fox, which is de- 
scribed as follows : " Reynard is a beast of small 
size, with red hair, a long bushy tail and an evil 
physiognomy, for his visage is thin and sharp, 

Capital Punishment of Animals 57 

his eyes deep-set and piercing, his ears small, 
straight and pointed; moreover he is deceitful 
and tricky above all other beasts and exceedingly 
malicious." " We are all," adds Queen Reason 
in a moralizing strain, " more or less of the 
brotherhood of Saint Fausset, whose influence is 
now-a-days quite extended." Among birds the 
raven is pre-eminently a malodorous creature and 
imp of Satan, whereas the dove is a sweet beast 
and the chosen vessel for the outpouring of the 
Holy Spirit, the form in which the third person 
of the Trinity became incarnate. 

This division of beasts corresponds in prin- 
ciple to that which is given in the Avesta, and 
according to which all animals are regarded as 
belonging either to the good creation of Ahura- 
mazda or to the evil creation of Angr6-mainyush. 
The world is the scene of perpetual conflict 
between these hostile forces summed up in the 
religion and ethics of Zarathushtra as the trinity 
of the good thought, the good word, and the 
good deed (humata, hukhta, huvarshta), which 
are to be fostered in opposition to the evil 
thought, the evil word, and the evil deed (dush- 
mata, duzhukhta, duzhvarshta), which are to be 
constantly combated and finally suppressed. 
Every man is called upon by the Iranian prophet 
to choose between these contraries ; and not only 
the present and future state of his own soul, the 
complexion of his individual character, but also 
the welfare of the whole world, the ultimate 

58 The Criminal Prosecution and 

destiny of the universe, depend, to no inconsider- 
able extent, upon his choice. His thoughts, 
words, and deeds do not cease with the immediate 
effect which they are intended to produce, but, 
nice force in the physical world, are persistent 
and indestructible. As the very slightest impulse 
given to an atom of matter communicates itself 
to every other atom, and thus disturbs the 
equilibrium of the globe — the footfall of a child 
shaking the earth to its centre — so the influence 
of every human life, however small, contributes 
to the general increase and ascendency of either 
good or evil, and helps to determine which of 
these principles shall ultimately triumph. In the 
universal strife of these " mighty opposites," the 
vicious are the allies of the devil ; while the 
virtuous are not merely engaged in working out 
their own salvation, but have also the ennobling 
consciousness of being fellow-combatants with the 
Deity, who needs and appreciates their services 
in overcoming the adversary. This sense of 
solidarity with the Best and the Highest imparts 
additional elevation and peculiar dignity to 
human aims and actions, and lends to devotion a 
warmth of sympathy and fervour of enthusiasm 
springing from personal attachment and loyalty, 
which it is difficult for the Religion of Humanity 
to inspire. The fact, too, that evil exists in the 
world, not by the will and design of the Good 
Being, but in spite of him, and that all his 
powers are put forth to eradicate it, while detract- 

Capital Punishment of Animals 59 

ing from his omnipotence, frees him from all 
moral obliquity and exalts his character for 
benevolence, thus rendering him far more worthy 
of love and worship and a much better model for 
human imitation than that " dreadful idealiza- 
tion of wickedness " which is called God in the 
Calvinistic creed. The idea that the humblest 
person may, by the purity and rectitude of his 
life, not only strengthen himself in virtue, but 
also increase the actual aggregate of goodness in 
the universe and even endue the Deity with 
greater power and aggressive energy in subdu- 
ing and extirpating evil, is surely a sublime 
thought and a source of lofty inspiration and 
encouragement in well-doing, although it has 
been degraded by Parsi Dasturs — as all grand 
conceptions and ideals are apt to be under 
priestly influences — into a ridiculous and childish 
hatred of snakes, scorpions, frogs, lizards, water- 
rats, and other animals supposed to have been 
produced by Angro-mainyush. 

Plato held a similar theory of creation, regard- 
ing it not as the manifestation of pure benevo- 
lence endowed with almighty power, but rather 
as the expression of perfect goodness working at 
disadvantage in an intractable material, which 
by its inherent stubbornness prevented the full 
embodiment and realization of the original pur- 
pose and desire of the Creator or Cosmourgos, 
who was therefore obliged to content himself 
with what was, under the circumstances, the 

6o The Criminal Prosecution and 

only possible, but by no means the best imagin- 
able, world. The Manicheans attributed the 
same unsatisfactory result to the activity of an 
evil principle, which thwarted the complete 
actualization of the designs of the Deity. So 
conspicuous, indeed, is the defectiveness of nature 
as a means of promoting the highest conceivable 
human happiness, so marked and manifold are 
the causes of suffering in all spheres of sentient 
existence, and so often do the elements seem to 
conspire for the destruction of mankind, raging 
relentlessly like a wild beast 

" Red in tooth and claw 
With ravin," 

that every cosmogony has been compelled to 
assume the persistent intervention of some 
malignant spirit or perverse agency as the only 
rational explanation of such a condition of 
things. The orthodox Christianity of to-day 
gives over the earth entirely to the sovereignty 
of Satan, the successful usurper of Eden, and 
instead of bidding the righteous to look forward 
to the final re-enthronement and absolute 
supremacy of truth and goodness in this world 
as the 

" One far-off divine event, 
To which the whole creation moves," 

consoles them with the vague promise of com- 
pensation in a future state of being. Even this 
remote prospect of redemption is confined to a 
select few; not only is the earth destined to be 

CapitaljPunishment of Animals 6i 

burned with fire on account of its utter corrup- 
tion, but the great majority of its inhabitants are 
doomed to eternal torments in the abode of evil 

Scientific research also leads to the same con- 
clusions in respect to the incompleteness of 
Nature's handiwork, which it is the function of 
art and culture to amend and improve. Every- 
where the correcting hand and contriving brain 
of man are needed to eliminate the worthless and 
noxious productions, in which Nature is so 
fatally prolific, and to foster and develop those 
that are useful and salutary, thus beautifying 
and ennobling all forms of vegetable and 
animal life. By a like process man himself has 
attained his present pre-eminence. Through 
long ages of strife and struggle he has emerged 
from brutishness and barbarism, and rising by 
a slow, spiral ascent, scarcely perceptible for 
generations, has been able gradually to 

" Move upward, working out the beast, 
And let the ape and tiger die." 

The more man increases in wisdom and intel- 
lectual capacity, the more efficient he becomes as 
a co-worker with the good principle. At the same 
time, every advance which he makes in civiliza- 
tion brings with it some new evil for him to 
overcome; or, as the Parsi would express it 
mythologically, every conquest achieved by 
Ahuramazda and his allies stimulates Angr6- 

62 The Criminal Prosecution and 

mainyush and his satellites to renewed exer- 
tions, who convert the most useful discoveries, 
like dynamite, into instruments of diabolical 
devastation. The opening of the Far West in 
the United States to agriculture and commerce, 
and the completion of the Pacific Railroad, not 
only served to multiply and diffuse the gifts of 
the beneficent and bountiful spirit {spento main- 
yush), but also facilitated the propagation and 
spread of the plagues of the grasshopper and the 
Colorado beetle. The power of destruction in- 
sidiously concealed in the minutest insect organ- 
ism often exceeds that of the tornado and the 
earthquake, and baffles the most persistent 
efforts of human ingenuity to resist it. The 
genius and energy of Pasteur were devoted for 
years to the task of detecting and destroying a 
microscopic parasite, which threatened to ruin 
for ever the silk industry of France; and the 
Phylloxera and Doryphora still continue to 
ravage with comparative impunity the vineyards 
of Europe and the potato-fields of America, 
defying at once all the appliances of science for 
their extermination and all the attempts of 
casuistic theology to reconcile such scourges 
with a perfectly benevolent and omnipotent 
Creator and Ruler of the Universe. It is the 
observation of phenomena like these that con- 
firms the modern Parsi in the faith of his fathers, 
and reveals to him, in the operations of nature 
and the conflicts of life, unquestionable evidences 

Capital Punishment of Animals 63 

of a contest between warring elements personi- 
fied as Hormazd and Ahriman, the ultimate 
issue of which is to be the complete triumph of 
the former and the consequent purification and 
redemption of the world from the curse of evil. 
The Parsi, however, recognizes no Saviour, and 
repudiates as absurd and immoral any scheme of 
atonement whereby the burden of sin can be 
shifted from the shoulders of the guilty to those 
of an innocent, vicarious victim. Every person 
must be redeemed by his own good thoughts, 
words, and deeds, as creation must be redeemed 
by the good thoughts, words, and deeds of the 
race. After death, the character of each indi- 
vidual thus formed appears to him, either in the 
form of a beautiful and brilliant maiden, who 
leads him over the Chinvad (or gatherer's) 
bridge, into the realms of everlasting light, or in 
the form of a foul harlot, who thrusts him down 
into regions of eternal gloom. 

But to return from this digression ; it is not 
only in the Venidad that certain classes of 
animals are declared to be creations of the arch- 
fiend, and therefore embodiments of devils ; 
additional proofs of this doctrine were derived 
by mediaeval writers from biblical and classical 
sources. A favourite example was the meta- 
morphosis of Nebuchadnezzar, who, when given 
over to Satan, dwelt with the beasts of the field 
and ate grass as oxen, while his hair grew like 
eagles' feathers and his nails like birds' claws. 

64 The Criminal Prosecution and 

Still more numerous and striking instances of 
this kind were drawn from pagan mythology, 
which, being of diabolical origin, would natur- 
ally be prolific of such phenomena. Thus, 
besides centaurs and satyrs, "dire chimeras" 
and other "delicate monsters," there were 
hybrids like the semi-dragon Cecrops and trans- 
formations by which lo became a heifer, 
Dsedalion a sparrow-hawk, Corone a crow, 
Actseon a stag, Lyncus a lynx, Maera a dog, 
Calisto a she-bear, Antigone a stork, Arachne a 
spider, Iphigenia a roe, Talus a partridge, Itys 
a pheasant, Tereus Ascalaphus and Nyctimene 
owls, Philomela a nightingale, Progne a 
swallow, Cadmus and his spouse Harmonia 
snakes, Decertis a fish, Galanthis a weasel, and 
the warriors of Diomedes birds, while the com- 
panions of Ulysses were changed by Circe, the 
prototype of the modern witch, into swine. All 
these metamorphoses are adduced as the results 
of Satanic agencies and proofs of the tendency of 
evil spirits to manifest themselves in bestial 

Towards the end of the ninth century the 
region about Rome was visited by a dire plague 
of locusts. A reward was offered for their 
extermination and the peasants gathered and 
destroyed them by millions; but all efforts were 
in vain, since they propagated faster than it was 
possible to kill them. Finally Pope Stephen 
VI. prepared great quantities of holy water and 

Capital Punishment of Animals 65 

had the whole country sprinkled with it, where- 
upon the locusts immediately disappeared. The 
formula used in consecrating the water and 
devoting it to this purpose implies the diabolical 
character of the vermin against which it was 
directed : "I adjure thee, creature water, I 
adjure thee by the living God, by Him, who 
at the beginning separated thee from the dry 
land, by the true God, who caused thee to 
fertilize the garden of Eden and parted thee 
into four heads, by Him, who at the marriage 
of Cana changed thee into wine, I adjure thee 
that thou mayst not suffer any imp or phantom 
to abide in thy substance, that thou mayst be 
indued with exorcising power and become a 
source of salvation, so that when thou art 
sprinkled on the fruits of the field, on vines, on 
trees, on human habitations in the cit}? or in 
the country, on stables, or on flocks, or if any 
one may touch or taste thee, thou shalt become 
a remedy and a relief from the wiles of Satan, 
that through thee plagues and pestilence may be 
driven away, that through contact with thee 
weevils and caterpillars, locusts and moles may 
be dispersed and the maliciousness of all visible 
and invisible powers hostile to man may be 
brought to nought." In the prayers which 
follow, the water is entreated to " preserve the 
fruits of the earth from insects, mice, moles, 
serpents and other foul spirits." 
This subject was treated in a lively and enter- 

66 The Criminal Prosecution and 

taining manner by a Jesuit priest, Pfere 
Bougeant, in a book entitled Amusement Philo- 
sophique sur le Langage des Bestes, which was 
written in the form of a letter addressed to a 
lady and published at Paris in 1739. In the 
first place, the author refers to the intelligence 
shown by animals and refutes the Cartesian 
theory that they are mere machines or animated 
automata. This tenet, we may add, was not 
original with Descartes, but was set forth at 
length by a Spanish physician, Gomez Pereira, 
in a bulky Latin volume bearing the queer 
dedicatory title : " Antoniana Margarita opus 
nempe physicis, medicis ac theologis non minus 
utile quam necessarium," and printed in 1554, 
nearly a century before the publication of 
Descartes' Meditationes de prima philosophia 
and Principia philosophiae, which began a new 
epoch in the history of philosophy. 

If animals are nothing but ingenious pieces 
of mechanism, argues the Jesuit father, then the 
feelings of a man towards his dog would not 
differ from those which he entertains towards 
his watch, and they would both inspire him 
with the same kind of affection. But such is 
not the case. Even the strictest Cartesian would 
never think of petting his chronometer as he 
pets his poodle, or would expect the former to 
respond to his caresses as the latter does. Practic- 
ally he subverts his own metaphysical system by 
the distinction which he makes between them, 

Capital Punishment of Animals 67 

treating one as a machine and tiie other as a 
sentient being, endowed with mental powers 
and passions corresponding, in some degree, to 
those ^ which he himself possesses. We infer 
from our own individual consciousness that 
other persons, who act as we do, are free and 
intelligent agents, as we claim to be. The 
same reasoning applies to the lower animals, 
whose manifestations of joy, sorrow, hope, fear, 
desire, love, hatred and other emotions, akin 
to those passing in our own minds, prove that 
there is within them a spiritual principle, which 
does not differ essentially from the human soul. 
But this conclusion, he adds, is contrary to 
the teachings of the Christian rehgion, since it 
involves the immortality of animal souls and 
necessitates some provision for their reward or 
punishment in a future life. If they are capable 
of merits and demerits and can incur praise and 
blame, then they are worthy of retribution here- 
after and there must be a heaven and a hell 
prepared for them, so that the pre-eminence 
of a man over a beast as an object of God's 
mercy or wrath is lost. " Beasts, in that case, 
would be a species of man or men a species 
of beast, both of which propositions are incom- 
patible with the teachings of religion." The 
only means of reconciling these views, endowing 
animals with intellectual sense and immortal 
souls without running counter to Christian 
dogmas, is to assume that they are incarnations 
of evil spirits. 

68 The Criminal Prosecution and 

Origen held that the scheme of redemption 
embraced also Satan and his satellites, who 
would be ultimately converted and restored to 
their primitive estate. Several patristic theo- 
logians endorsed this notion, but the Church 
rejected it as heretical. The devils are, there- 
fore, from the standpoint of Catholic ortho- 
doxy, irrevocably damned and the blood of 
Christ has made no atonement for them. But, 
although their fate is sealed their torments have 
not yet begun. If a man dies in his sins, his 
soul, as soon as it departs from his body, 
receives its sentence and goes straight to hell. 
The highest ecclesiastical authorities have 
decided that this is not true of devils, who, 
although condemned to everlasting fire, do not 
enter upon their punishment until after the 
judgment-day. This view is supported by 
many passages and incidents of Holy Writ. 
Thus Christ declares that, when the Son of man 
shall come in his glory, he shall say unto them 
on his left hand, " Depart from me, ye cursed, 
into everlasting fire prepared for the devil and 
his angels." Here it is not stated that the 
devils are already burning, but that the fire has 
been " prepared " for them, a form of expres- 
sion which leads us to infer that they were not 
yet in it. Again the devils, which Christ drove 
out of the two "exceeding fierce" demoniacs, 
protested against such interference, saying, 
" Art thou come hither to torment us before the 
time?" This question has no significance, 

Capital Punishment of Animals 69 

unless we suppose that they had a right to 
inhabit such living beings as had been assigned 
to them, until the time of their torment should 
come on the last day. P^re Bougeant is 
furthermore of the opinion that, when these 
devils were sent miraculously and therefore 
abnormally into the swine, they came into con- 
flict with the devils already in possession of the 
pigs, and thus caused the whole herd to run 
violently down a steep place into the sea. Even 
a hog, he thinks, could not stand it to harbour 
more than one devil at a time, and would be 
driven to suicide by having an intrinsic and 
superfluous demon conjured into it. A still more 
explicit and decisive declaration on this point 
is found in the Epistle of Jude and the Second 
Epistle of Peter, where it is stated that the angels 
which kept not their first estate the Lord hath 
reserved in everlasting chains under darkness 
unto the judgment of the great day. These 
words are to be understood figuratively as 
referring to the irrevocableness of their doom 
and the durance vile to which they are mean- 
while subjected. That they are held in some 
sort of temporary custody and are not actually 
undergoing, but still awaiting the punishment, 
which divine justice has imposed upon them, the 
sacred scriptures and the teachings of the Church 
leave no manner of doubt. 

Now the question arises as to what these 
legions of devils are doing in the meantime. 

yo The Criminal Prosecution and 

Some of them are engaged in " going to and 
fro in tiie earth and walking up and down in it," 
in order to spy out and take advantage of 
human infirmities. God himself makes use of 
them to test the fealty of men and their 
power of holding fast to their integrity under 
severe temptations, just as the Creator made 
fossils and concealed them in the different strata 
of the earth, in order to see whether Christian 
faith in the truth of revelation would be strong 
enough to resist the seductions of "science 
falsely so called." Other devils enter into living 
human bodies and give themselves up to evil 
enchantments as wizards and witches ; others still 
reanimate corpses or assume the form and 
features of the dead and wander about as ghosts 
and hobgoblins. Not only were pagans re- 
garded by the Christian Church as devil-wor- 
shippers and exorcised before being baptized, 
but it is also a logical deduction from the doc- 
trine of original sin, that a devil takes posses- 
sion of every child as soon as it is born and 
remains there until expelled by an ecclesiastical 
functionary, who combines the office of priest 
with that of conjurer and is especially appointed 
for this purpose. Hence arose the necessity of 
abrenunciation, as it was called, which preceded 
baptism in the Catholic Church and which 
Luther and the Anglican reformers retained. 
Before the candidate was christened he was 
exorcised and adjured personally, if an adult, or 

Capital Punishment of Animals 71 

through a sponsor, if an infant, to " forsake the 
devil and all his works." These words, which 
still hold a place in the ritual, but are now 
repeated in a perfunctory manner by persons, 
who have no conception of the magic potency 
formerly ascribed to them, are a survival of the 
old formula of exorcism. In the seventeenth 
century there was a keen competition between 
the Roman Catholic and the Lutheran clergy in 
casting out devils, the former claiming that to 
them alone had been transmitted the exorcising 
power conferred by Christ upon his apostles. 
The Protestant churches finally gave up the 
hocus-pocus and during the eighteenth century 
it fell into general discredit and disuse among 
them, although some of the stiffest and most 
conservative Lutherans never really abandoned 
it in principle and have recently endeavoured to 
revive it in practice. 

The Catholic Church, on the contrary, still 
holds that men, women and cattle may be 
possessed by devils and prescribes the means 
of their expulsion. In a work entitled Rituale 
ecclesiasticum ad usum clericorum S. Fransisci 
by Pater Franz Xaver Lohbauer (Munich, 1851), 
there is a chapter on the mode of helping those 
who are afflicted by demons (Modus juvandi 
afflictos a daemone). The author maintains that 
nearly all so-called nervous diseases, hysteria, 
epilepsy, insanity, and milder forms of mental 
alienation, are either the direct result of dia- 

72 The Criminal Prosecution and 

bolical agencies or attended and greatly aggra- 
vated by them. A sound mind in a sound body 
may make a man devil-proof, but Satan is quick 
to take advantage of his infirmities in order to 
get possession of his person. The adversary is 
constantly lying in wait watching for and trying 
to produce physical derangements as breaches in 
the wall, through which he may rush in and 
capture the citadel of the soul. In all cases of 
this sort the priest is to be called in with the 
physician, and the medicines are to be blessed 
and sprinkled with holy water before being 
administered. Exorcisms and conjurations are 
not only to be spoken over the patient, but also 
to be written on slips of consecrated paper and 
applied, like a plaster, to the parts especially 
affected. The physician should keep himself 
supplied with these written exorcisms, to be used 
when it is impossible for a priest to be present. 
As with patent medicines, the public is warned 
against counterfeits, and no exorcism is genuine 
unless it is stamped with the seal and bears the 
signature of the bishop of the diocese. Accord- 
ing to Father Lohbauer, the demon is the efficient 
cause of the malady, and there can be no cure 
until the evil one is cast out. This is the office 
of the priest; the physician then heals the 
physical disorder, repairing the damage done to 
the body, and, as it were, stopping the gaps with 
his drugs so as to prevent the demon from 
getting in again. Thus science and religion are 

Capital Punishment of Animals 73 

reconciled and work together harmoniously for 
the healing of mankind. 

The Catholic Church has a general form of 
Benedictio a daemone vexatorum, for the relief 
of those vexed by demons; and Pope Leo XIII., 
who was justly esteemed as a man of more than 
ordinary intelligence and more thoroughly im- 
bued with the modern spirit than any of his pre- 
decessors, composed and issued, November 19, 
1890, a formula of Exorcismus in Satanam et 
Angelas Apostatas worthy of a place in any medi- 
aeval collection of conjurations. His Holiness 
never failed to repeat this exorcism in his daily 
prayers, and commended it to the bishops and 
other clergy as a potent means of warding off the 
assaults of Satan and of casting out devils. In 
1849 the Bishop of Passau published a Manuale 
Benedictionum, and as late as 1893 Dr. Theobald 
Bischofberger described and defended the prac- 
tice of the papal see, in this respect, in a 
brochure printed in Stuttgart and entitled Die 
Verwaltung des Exorcistats nach Massgabe der 
romischen Benediktionale. 

That these formulas are still deemed highly 
efficacious is evident from the many recent cases 
in which they have been employed. Thus in 
1842 a devil named Ro-ro-ro-ro took possession 
of " a maiden of angelic beauty " in Luxemburg 
and was cast out by Bishop Laurentius. This 
demon claimed to be one of the archangels ex- 
pelled from heaven, and appears to have rivalled 
Parson Stocker and Rector Ahlwardt in Anti- 

74 The Criminal Prosecution and 

Semitic animosity; wiien the name of Jesus was 
mentioned, he cried out derisively: " O, that 
Jew! Didn't he have to drink gall?" When 
commanded to depart, he begged that he might 
go into some Jew. The bishop, however, refused 
to give him leave and bade him "go to hell," 
which he forthwith did, " moaning as he went, 
in melancholy tones, that seemed to issue from 
the bowels of the earth, ' Burning, burning, ever- 
lastingly burning in hell!' The voice was so 
sad, ' ' adds the bishop, ' ' that we should have 
wept for sheer compassion, had we not known 
that it was the devil." 

Again, a lay brother connected with an educa- 
tional institute in Rome became diabolically pos- 
sessed on January 3, 1887, and was exorcised by 
Father Jordan. In this instance the leading 
spirit was Lucifer himself, attended by a host of 
satellites, of whom Lignifex, Latibor, Monitor, 
Ritu, Sefilie, Shulium, Haijunikel, Exaltor, and 
Reromfex were the most important. It took 
about an hour and a half to cast out these demons 
the first time, but they renewed their assaults on 
February loth, nth, and 17th, and were not 
completely discomfited and driven back into the 
infernal regions until February 23rd, and then 
only by using the water of Lourdes, which, as 
Father Jordan states, acted upon them like 
poison, causing them to writhe to and fro. 
Lucifer was especially rude and saucy in his 
remarks. Thus, for example, when Father 
Jordan said, '' Every knee in heaven and on the 

Capital Punishment of Animals 75 

earth shall bow to the name of Jesus," the fallen 
"Son of the Morning" retorted, "Not Luci, 
not Luci — never ! ' ' 

It would be easy to multiply authentic reports 
of things of this sort that have happened within 
the memory of the present generation, such as 
the exorcism of a woman of twenty-seven at Laas 
in the Tyrol in the spring of 1892, and the expul- 
sion of an evil spirit from a boy ten years of age 
at Wemding in Bavaria by a capuchin. Father 
Aurelian, July 13th and 14th, 1891, with the 
sanction of the bishops of Augsburg and Eich- 
statt. In the latter case we have a circumstantial 
account of the affair by the exorcist himself, who, 
in conclusion, uses the following strong lan- 
guage : " Whosoever denies demoniacal posses- 
sion in our days confesses thereby that he has 
gone astray from the teaching of the Catholic 
Church ; but he will believe in it when he himself 
is in the possession of the devil in hell. As for 
myself I have the authority of two bishops." In 
a pamphlet on this subject printed at Munich in 
1892, and entitled Die Teufelsaustreibung in 
Wemding, the author, Richard Treufels, takes 
the same view, declaring that diabolical posses- 
sion " is an incontestable fact, confirmed by the 
traditions of all nations of ancient and modern 
times, by the unequivocal testimony of the Old 
and New Testaments, and by the teaching and 
practice of the Catholic Church." Christ, he 
says, gave his disciples power and authority 

76 The Criminal Prosecution and 

over all devils to cast them out, and the same 
power is divinely conferred upon every priest by 
his consecration, although it is never to be 
exercised without the permission of his bishop. 

Doubtless modern science by investigating the 
laws and forces of nature is gradually diminish- 
ing the realm of superstition ; but there are vast 
low-lying plains of humanity that have not yet 
felt its enlightening and elevating influence. It 
has been estimated that nine-tenths of the rural 
population of Europe and ninety-nine hundredths 
of the peasantry, living in the vicinity of a 
cloister and darkened by its shadow, believe 
in the reality of diabolical possession and 
attribute most maladies of men and murrain in 
cattle to the direct agency of Satan, putting their 
faith in the " metaphysical aid " of the conjurer 
rather than in medical advice and veterinary 

Unfortunately this belief is not confined to 
Catholics and boors, but is held by Protestants, 
who are considered persons of education and 
superior culture. Dr. Lyman Abbott asserted 
in a sermon preached in Plymouth Church, that 
" what we call the impulses of our lower nature 
are the whispered suggestions of fiend-like 
natures, watching for our fall and exultant if 
they can accomplish it." But while afiSrming 
that " evil spirits exercise an influence over man- 
kind," and that cranks like Guiteau, the assassin 
of President Garfield, are diabolically possessed, 

Capital Punishment of Animals 'j'j 

the reverend divine would hardly risk his reputa- 
tion for sanity by attempting to exorcise the 
supposed demon. The Catholic priest holds the 
same view, but has the courage of his convictions 
and goes solemnly to work with bell, book and 
candle to effect the expulsion of the indwelling 

The fact that such methods of healing are 
sometimes successful is adduced as conclusive 
proof of their miraculous character; but this 
inference is wholly incorrect. Professor Dr. 
Hoppe, in an essay on Der Teufels- und Geister- 
glaube und die psychologische Erkldrung des 
Besessenseins (Allgemeine Zeitschrift fiir Psy- 
chiatrie, Bd. LV. p. 290), gives a psychological 
explanation of these puzzling phenomena. " The 
priest," he says, "exerts a salutary influence 
upon the brain through the respect and dignity 
which he inspires, just as Christ in his day 
wrought upon those who were sick and possessed 
with devils." Indeed, it is expressly stated by 
the evangelist that Jesus did not attempt to do 
wonderful works among people who did not 
believe. According to this theory the exorcism 
effects a cure by its powerful action on the 
imagination, just as there are frequent ailments, 
for which a wise physician administers bread 
pills and a weak solution of powdered sugar as 
the safest and best medicaments. Professor 
Hoppe, therefore, approves of ' ' priestly con- 
jurations for the expulsion of devils as a psychi- 

78 The Criminal Prosecution and 

cal means of healing," and thinks that the more 
ceremoniously the rite can be performed in the 
presence of grave and venerable witnesses, the 
more effective it will be. This opinion is 
endorsed by a Catholic priest, Friedrich Jaskow- 
ski, in a pamphlet entitled Der Trierer Rock und 
seine Patienten vom Jahre 1891 (Saarbriicken : 
Carl Schmidtke, 1894). The author belongs to 
the diocese of Trier and is therefore under the 
jurisdiction of the bishop. Dr. Felix Korum, 
whose statements concerning the miracles 
wrought and the evidences of divine mercy mani- 
fested during the exhibition of the " holy coat " 
in 1891 he courageously reviews and conclusively 
refutes. The bishop had printed what he called 
" documentary proofs," consisting of certificates 
issued by obscure curates and country doctors, 
that certain persons suffering chiefly from diseases 
of the nervous system had been healed, and sought 
to discover in these cures the working of divine 
agencies. Jaskowski shows that in several in- 
stances the persons said to have found relief 
died shortly afterwards, and maintains that where 
cures actually occurred they " were not due to a 
miracle or any direct interference of God with the 
established order of things, but happened in a 
purely natural manner." He quotes the late: 
Professor Charcot, Dr. Forel, and other neuro- 
pathologists to establish the fact that hetero-sug- 
gestion emanating from a physician or priest, or 
auto-suggestion originating in the person's own 

Capital Punishment of Animals 79 

mind, may often be the most effective remedy 
for neurotic disorders of every kind. In auto- 
suggestion tfie patient is possessed witii the fixed 
idea that the doing of a certain thing, which may 
be in itself absolutely indifferent, will afford 
relief. As an example of this faith-cure Jas- 
kowski refers to the woman who was diseased 
with an issue of blood, and approaching Jesus 
said within herself: " If 1 may but touch his 
garment, I shall be whole." This is precisely 
the position taken by Jesus himself, who turned 
to the woman and said : ' ' Daughter, be of good 
comfort; thy faith hath made thee whole." 
Jaskowski also quotes the declaration of the 
evangelist referred to above, that in a certain 
place the people's lack of faith prevented Jesus 
from doing many wondrous works, and does not 
deny that on this principle, which is now recog- 
nized by the most eminent physicians, some few 
of the hundreds of pilgrims may have been 
restored to health by touching the holy coat of 
Trier; and there is no doubt that the popular 
belief in Bishop Korum's assertion that it is the 
same garment which Jesus wore and the woman 
touched, would greatly increase its healing 
efficacy through the force of auto-suggestion 
(see my article on " Recent Recrudescence of 
Superstition " in Appleton's Popular Science 
Monthly for Oct. 1895, PP- 762-66). 

The Bishop of Bamberg in Bavaria has been 
stigmatized as a hypocrite because he sends the 

8o The Criminal Prosecution and 

infirm of his flock on a pilgrimage to Lourdes or 
Laas or some other holy shrine, while he prefers 
for himself the profane waters of Karlsbad or 
Kissingen. But in so doing he is not guilty of 
any inconsistency, since a journey to sacred 
places and contact with sacred relics would not 
act upon him with the same force as upon the 
ignorant and superstitious masses of his diocese. 
His conduct only evinces his disbelief in the 
supernatural character of the remedies he 
prescribes. The distinguished French physician, 
Professor Charcot, as already mentioned, recog- 
nized the curative power of faith under certain 
circumstances, and occasionally found it emi- 
nently successful in hysterical and other purely 
nervous affections. In some cases he did not 
hesitate to prescribe a pilgrimage to the shrine 
of any saint for whom the patient may have had 
a peculiar reverence; but in no instance in his 
experience did faith or exorcism or hagiolatry 
heal an organic disease, set a dislocated joint or 
restore an amputated limb. What Falstaff says 
of honour is equally true of faith, it " hath no 
skill in surgery." 

But to return from this digression, P^re 
Bougeant's theory of the diabolical possession of 
pagans and unbaptized persons would provide 
for comparatively few devils, and the gradual 
diffusion of Christianity would constantly 
diminish the supply of human beings available 
as their proper habitations. The ultimate con- 

Capital Punishment of Animals 8 i 

version of the whole world and the custom of 
baptizing infants as soon as they are born would, 
therefore, produce serioys domiciliary destitu- 
tion and distress among the evil spirits and set 
immense numbers of them hopelessly adrift as 
vagabonds, and thus create an extremely undesir- 
able diabolical proletariat. This difficulty is 
avoided by assuming that the vast majority of 
devils are incarnate in the billions of beasts of all 
kinds, which dwell upon the earth or fly in the 
air or fill the waters of the rivers and the seas. 
This hypothesis, he adds, "enables me to 
ascribe to the lower animals thought, knowledge, 
feeling, and a spiritual principle or soul without 
running counter to the truths of religion. In- 
deed, so far from being astonished at their mani- 
festations of intelligence, foresight, memory and 
reason, I am rather surprised that they do not 
display these qualities in a higher degree, since 
their soul is probably far more perfect than ours. 
Their defects are, as I have discovered, owing to 
the fact that in brute as in us, the mind works 
through material organs, and inasmuch as these 
organs are grosser and less perfect in the lower 
animals than in man, it follows that their exhibi- 
tions of intelligence, their thoughts and all their 
mental operations must be less perfect; and, if 
these proud spirits are conscious of their condi- 
tion, how humiliating it must be for them to see 
themselves thus embruted ! Whether they are 
conscious of it or not, this deep degradation is 

82 The Criminal Prosecution and 

the first act of God's vengeance executed on his 
foes. It is a foretaste of hell." 

Only by such an assumption, as our author 
proceeds to show, is it possible to justify the 
ways of man to the lower animals and to recon- 
cile his cruel treatment of them with the goodness 
of an all-wise and all-powerful maker and ruler 
of the universe. For this reason, he goes on to 
explain, the Christian Church has never deemed 
it a duty to take the lower animals under its pro- 
tection or to inculcate ordinary natural kindness 
towards them. Hence in countries, like Italy and 
Spain, where the influence of Catholicism has 
been supreme for centuries, not only are wild 
birds and beasts of chase relentlessly slaughtered 
and exterminated, but even useful domestic 
animals, asses, sumpter-mules and pack-horses, 
are subjected to a supererogation of suffering at 
the hands of ruthless man. As the pious Parsi 
conscientiously comes up to the help of Ahuram- 
azda against the malevolent Angro-mainyush by 
killing as many as possible of the creatures 
which the latter has made, so the good Catholic 
becomes an efficient co-worker with God by mal- 
treating brutes and thus aiding the Almighty in 
punishing the devils, of which they are the 
visible and bruisable forms. Whatever pain is 
inflicted is felt, not by the physical organism, 
but by the animated spirit. It is the embodied 
demon that really suffers, howling in the beaten 
dog and squealing in the butchered pig. 

Capital Punishment of Animals 83 

There are doubtless many persons of tender 
susceptibilities, who cannot bear to think that the 
animals, whose daily companionship we enjoy, 
the parrot we feed with sugar, the pretty pug we 
caress and the noble horse, which ministers to 
our comfort and convenience, are nothing but 
devils predestined to everlasting torture. But 
these purely sentimental considerations are of no 
weight in the scale of reason. " What matters 
it," replies the Jesuit Father, "whether it is a 
devil or another kind of creature that is in our 
service or contributes to our amusement? For 
my part, this idea pleases rather than repels me ; 
and I recognize with gratitude the beneficence of 
the Creator in having provided me with so many 
little devils for my use and entertainment. If it 
be said that these poor creatures, which we have 
learned to love and so fondly cherish, are fore- 
ordained to eternal torments, I can only adore 
the decrees of God, but do not hold myself 
responsible for the terrible sentence ; I leave the 
execution of the dread decision to the sovereign 
judge and continue to live with my little devils, 
as I live pleasantly with a multitude of persons, 
of whom, according to the teachings of our holy 
religion, the great majority will be damned." 
The crafty disciple of Loyola, elusive of dis- 
agreeable deductions, is content to accept the 
poodle in its phenomenal form and to make the 
most of it, without troubling himself about " des 
Pudels Kern." 

84 The Criminal Prosecution and 

This doctrine, he thinks, is amply illustrated 
and confirmed by an appeal to the consentient 
opinion of mankind or the argument from uni- 
versal belief, which has been so often and so 
effectively urged in proof of the existence of 
God. If the maxim universitas non delinquit 
has the same validity in the province of philo- 
sophy as in that of law, then we are justified in 
assuming that the whole human race cannot go 
wrong even in purely metaphysical speculation 
and that unanimity in error is a psychological 
impossibility. The criterion of truth, quod 
semper, quod ubique, quod ab omnibus, by which 
the Roman hierarchy is willing to have its claims 
to ecclesiastical catholicity and doctrinal ortho- 
doxy tested, is confined to Christendom in its 
application and does not consider the views of 
persons outside of the body of believers. In the 
question under discussion the argument is not 
subject to such limitations, but gathers testimony 
from all races and religions, showing that there 
is not a civilized nation or savage tribe on the 
face of the earth, which does not regard or has 
not regarded the lower animals as embodiments 
of evil spirits and sought to propitiate them. 
That " the devil is an ass " is a truth so palpable 
that it has passed into a proverb. Baal-zebub 
means fly-god; and the Christian Satan betrays 
his presence by the cloven foot of the goat or the 
solid hoof of the horse. In folk-lore, which is 
the debris of exploded mythologies adrift on the 

Capital Punishment of Animals 85 

stream of popular tradition, cats, dogs, otters, 
apes, ravens, blackcocks', capercailzies, rabbits, 
hedgehogs, wolves, were-wolves, foxes, pole- 
cats, swine, serpents, toads, and countless 
varieties of insects, reptiles and vermin figure as 
incarnations and instruments of the devil ; and 
Mephistopheles reveals himself to Faust as 

"Der Herr der Ratten und der Mause, 
Der Fliegen, Frosche, Wanzen, Lause." 

" The Lord of rats and of the mice, 
Of flies and frogs, bed-bugs and lice." 

The worship of animals originates in the belief 
that they are embodiments of devils, so that 
zoolatry, which holds such a prominent place in 
primitive religions, is only a specific form of 
demonolatry. The objection that a flea or a fly, 
a mite or a mosquito is too small a creature to 
furnish fit lodgment for a demon. Father Bou- 
geant dismisses with an indulgent smile and 
disparaging shrug as implying a gross miscon- 
ception of the nature and properties of spirit, 
which is without extension or dimension and 
therefore capable of animating the most diminu- 
tive particle of organized matter. Large and 
little are purely relative terms. God, he says, 
could have made man as small as the tiniest 
puceron without any decrease of his spiritual 
powers. " It is, therefore, no more difificult to 
believe that a devil may be incorporated in the 
delicate body of a gnat than in the huge bulk of 

86 The Criminal Prosecution and 

an elephant." The size of the physical habita- 
tion, in which spirits take up their temporary 
abode, is a thing of no consequence. In fact, 
devils in the forms of gnats and tiny insects were 
thought to be especially dangerous, since one 
might swallow them unawares and thus become 
diabolically possessed. The demon, liberated by 
the death and dissolution of the insect, was sup- 
posed to make a tenement of the unfortunate 
person's stomach, producing gripes and playing 
ventriloquous tricks. Thus it is recorded in the 
Dies Caniculuares of Majolus (Meyer : Der 
Aberglaube des Mittelalters, p. 296-7) that a 
young maiden in the Erzgebirge near Joachims- 
thal, in 1559, swallowed a fly, while drinking 
beer. The evil spirit, incarnate in the fly, took 
possession of the maiden and began to speak out 
of her, thus attracting crowds of people, who put 
questions to the devil and tried to drive him out 
by prayers, in which the unhappy girl sometimes 
joined, greatly to her discomfort, since the devil 
waxed exceeding wroth and unruly and caused 
her much suffering, whenever she uttered the 
name of Christ. Finally the parish priest had 
her brought into the church, where he succeeded 
with considerable difficulty in exorcising her. 
The stubborn demon resisted for two years all 
efforts to cast him out; he even tried to com- 
promise with the girl, promising to be content 
with a finger nail or a single hair of her head, 
but she declined all overtures, and he was at last 

Capital Punishment of Animals 87 

expelled by means of a potent conjuration, which 
lasted from midnight till midday. 

As the human soul is released by death, so the 
extinction of life in any animal sets its devil 
free, who, instead of entering upon a spiritual 
state of existence, goes into the egg or embryo of 
another animal and resumes his penal bondage 
to the flesh. " Thus a devil, after having been a 
cat or a goat, may pass, not by choice, but by 
constraint, into the embryo of a bird, a fish or a 
butterfly. Happy are those who make a lucky 
hit and become household pets, instead of beasts 
of burden or of slaughter. The lottery of destiny 
bars them the right of voluntary choosing." 
The doctrine of transmigration, continues our 
author, " which Pythagoras taught of yore and 
some Indian sages hold to-day, is untenable in 
its application to men and contrary to religion, 
but it fits admirably into the system already set 
forth concerning the nature of beasts, and shocks 
neither our faith nor our reason." Further- 
more, it explains why " all species of animals 
produce many more eggs or embryos than are 
necessary to propagate their kind and to provide 
for a normal increase." Of the millions of 
germs, of which " great creating nature " is so 
prolific, comparatively few ever develop into 
living creatures; only those which are vivified 
by a devil are evolved into complete organisms ; 
the others perish. This seeming superfluity and 
waste can be most easily reconciled with the care- 

88 The Criminal Prosecution ana 

ful economy and wise frugality of nature by 
viewing it as a manifestation of the bountiful and 
beneficent, providence of God in preventing 
' ' any lack of occupation or abode on the part of 
the devils," which are being constantly dis- 
embodied and re-embodied. " This accounts for 
the prodigious clouds of locusts and countless 
hosts of caterpillars, which suddenly desolate our 
fields and gardens. The cause of these astonish- 
ing multiplications has been sought in cold, 
heat, rain and wind, but the real reason is that, 
at the time of their appearance, extraordinary 
quantities of animals have died or their embryos 
been destroyed, so that the devils that animated 
them were compelled to avail themselves at once 
of whatever species they found most ready to 
receive them, which would naturally be the 
superabundant eggs of insects." The more pro- 
foundly this subject is investigated, he con- 
cludes, and the more light our observations and 
researches throw upon it from all sides, the more 
probable does the hypothesis here suggested in 
explanation of the puzzling phenomena of 
animal life and intelligence appear. 

Father Bougeant calls his lucubration " a new 
system of philosophy ' ' ; but this is not strictly 
true. He has only given a fuller and more 
facetious exposition of a doctrine taught by 
many of the greatest lights of the Catholic 
Church, among others by Thomas Aquinas, 
whose authority as a thinker Pope Leo XIII. 

Capital Punishment of Animals 89 

distinctly recognized and earnestly sought to 
restore to its former prestige. Bougeant's in- 
genious dissertation has a vein of irony or at 
least a strain of jocundity in it, approaching at 
times so perilously near the fatal brink of persi- 
flage, that one cannot help surmising an inten- 
tion to render the whole thing ridiculous in a 
witty and underhand way eminently compatible 
with Jesuitical habits of mind ; but whether seri- 
ous or satirical, his treatise is an excellent 
example and illustration of the kind of dialectic 
hair-splitting and syllogistic rubbish, which 
passed for reasoning in the early and middle 
ages of the Christian era, and which the greatest 
scholars and acutest intellects of those days 
fondly indulged in and seem to have been fully 
satisfied with. Here, too, we come upon the 
metaphysical and theological groundwork, upon 
which was reared by a strictly logical process a 
vast superstructure of ecclesiastical excommuni- 
cation and criminal prosecution against bugs and 
beasts. He protests with never-tiring and need- 
less iteration his absolute devotion to the pre- 
cepts of religion ; indeed, like the lady in the 
play, he " protests too much, methinks." In all 
humbleness and submission he bows to the 
authority of the Church, and would not touch the 
ark of the covenant even with the tip of his 
finger, but his easy acquiescence has an air of 
perfunctoriness, and in his assenting lips there 
lurks a secret, semi-sarcastic leer, which casts 

go The Criminal Prosecution and 

suspicion on his words and looiis like poking fun 
at the principles he professes and turning them 
into raillery. 

Indeed, such covert derision would have been 
a suitable way of ridiculing the gross popular 
superstition of his time, which saw a diabolical 
incarnation in every unfamiliar form of animal 
life. During the latter half of the sixteenth 
century a Swiss naturalist named Thurneysser, 
who held the position of physician in ordinary 
to the Elector Johann Georg von Branden- 
burg, kept some scorpions bottled in olive oil, 
which were feared by the common people as 
terrible devils endowed with magic power (Jiirch- 
terliche Zauberteufel). Thurneysser presented 
also to Basel, his native city, a large elk, which 
had been given to him by Prince Radziwil; but 
the good Baselers looked upon the strange 
animal as a most dangerous demon, and a pious 
old woman finally rid the town of the dreaded 
beast by feeding it with an apple stuck full of 
broken needles. 

A distinguished Spanish theologian of the six- 
teenth century, Martin Azpilcueta, commonly 
known as Dr. Navarre, refers, in his work on 
excommunication, to a case in which anathemas 
were fulminated against certain large sea-crea- 
tures called terones, which infested the waters of 
Sorrento and destroyed the nets of the fisher- 
men. He speaks of them as "fish or caco- 
demons " (pisces sen cacodemones), and main- 

Capital Punishment of Animals 91 

tains that they are subject to anathematization, 
not as fish, but only as devils. In his Five 
Counsels and other tractates on this subject 
(Opera, Lyons, 1589; reprinted at Venice, 1601-2, 
and at Cologne, 1616) he often takes issue with 
Chassen^e on minor points, but the French jurist 
and the Spanish divine agree on the main 

In this connection it may be a matter of 
interest to add, that a German neuropathologist 
of our own day, Herr von Bodelschwingh, 
ascribes epilepsy to what he calls " demonic 
infection " due to the presence of the bacillus 
infernalis in the blood of those who are subject 
to this disease. The microbe, to which the 
jocose scientist has been pleased to give this 
name, differs from all other bacilli hitherto dis- 
covered in having two horns and a tail, although 
the most powerful lenses have not yet revealed 
any traces of a cloven foot. An additional indica- 
tion of its infernal qualities is the fact that it 
liquefies the gelatine, with which it comes in con- 
tact, and turns it black, emitting at the same 
time a pestilential stench. Doubtless this dis- 
covery will be hailed by theologians as a striking 
confirmation of divine revelation by modern 
science, proving that our forefathers were right 
in attributing the falling-sickness to diabolical 
agencies. We know now that it was a legion of 
bacilli infernales which went out of the tomb- 
haunting man into the Gadarene swine and drove 

92 The Criminal Prosecution and 

them tumultuously over a precipice into the sea. 
In fact, who can tell what microbes really are ! 
Pfere Bougeant would certainly have regarded 
them as nothing less than microscopic devils. 

The Savoyan jurist, Gaspard Bailly, in the 
second part of the disquisition entitled Traite 
des Monitoires, already mentioned, treats " Of 
the Excellence of Monitories " and discusses the 
main points touching the criminal prosecution 
and punishment of insects. He begins by saying 
that " one should not contemn monitories (a 
general term for anathemas, bans and excom- 
munications), seeing that they are matters of 
great importance, inasmuch as they bear with 
them the deadliest sword, wielded by our holy 
mother, the Church, to wit, the power of excom- 
munication, which cutteth the dry wood and the 
green, sparing neither the quick nor the dead, 
and smiting not only rational beings, but turn- 
ing its edge also against irrational creatures; 
since it hath been shown at sundry times and in 
divers places, that worms and insects, which 
were devouring the fruits of the earth, have been 
excommunicated and, in obedience to the com- 
mands of the Church, have withdrawn from the 
cultivated fields to the places prescribed by the 
bishop who had been appointed to adjudge and 
to adjure them." 

M. Bailly then cites numerous instances of this 
kind, in which a writer on logic would find ample 
illustrations of the fallacy known as post hoc, 

Capital Punishment of Animals 93 

ergo 'propter hoc. Thus in the latter half of the 
fifteenth century, during the reign of Charles the 
Bold, Duke of Burgundy, a plague of locusts 
threatened the province of Mantua in Northern 
Italy with famine, but were dispersed by excom- 
munication. He quotes some florid lines from 
the poet Altiat descriptive of these devastating 
swarms, which " came, after so many other woes, 
under the leadership of Eurus {i. e. brought by 
the east wind), more destructive than the hordes 
of Attila or the camps of Corsicans, devouring 
the hay, the millet and the corn, and leaving only 
vain wisheSj where the hopes of August stood." 
Again in 1541, a cloud of locusts fell upon 
Lombardy, and by destroying the crops, caused 
many persons to perish with hunger. These 
insects "were as long as a man's finger, with 
large heads and bellies filled with vileness; and 
when dead they infected the air and gave forth 
a stench, which even carrion kites and carnivor- 
ous beasts could not endure." Another instance 
is given, in which swarms of four-winged insects 
came from Tartary, identified in the popular 
mind with Tartarus, obscuring the sun in their 
flight and covering the plains of Poland a cubit 
deep. In the year 1338, on St. Bartholomew's 
Day, these creatures began to devastate the 
region round Botzen in the Tyrol, consuming 
the crops and laying eggs and leaving a numer- 
ous progeny, which seemed destined to continue 
the work of destruction indefinitely. A prosecu- 

94 The Criminal Prosecution and 

tion was therefore instituted against them before 
the ecclesiastical court at Kaltern, a large 
market-town about ten miles south of Botzen, 
then as now famous for its wines, and the parish 
priest instructed to proceed against them with the 
sentence of excommunication in accordance with 
the verdict of the tribunal. This he did by the 
solemn ceremony of "inch of candle," and 
anathematized them " in the name of the Blessed 
Trinity, Father, Son and Holy Ghost." Owing to 
the sins of the people and their remissness in the 
matter of tithes the devouring insects resisted for 
a time the power of the Church, but finally dis- 
appeared. Under the reign of Lotharius II., early 
in the twelfth century, enormous quantities of 
locusts, " having six wings with two teeth harder 
than flint " and " darkening the sky and whiten- 
ing the air like a snowstorm," laid waste the 
most fertile provinces of France. Many of them 
perished in the rivers and the sea, and being 
washed ashore sent forth a putrescent smell and 
produced a fearful pestilence. Precisely the 
same phenomenon, with like disastrous results, is 
described by St. Augustine in the last book of 
De Civitate Dei as having occurred in Africa and 
caused the death of 800,000 persons. 

In the majority of cases adduced there is no 
evidence that the Church intervened at all with 
its fulminations, and, even when the anathema 
was pronounced, the insects appear to have 
departed of their own free-will after having eaten 

Capital Punishment of Animals 95 

up every green thing and reduced the inhabitants 
to the verge of starvation; and yet M. Bailly, 
supposed to be a man of judicial mind, dis- 
ciplined by study, accustomed to reason and to 
know what sound reasoning is, goes on giving 
accounts of such scourges, as though they proved 
in some mysterious way the effectiveness of 
ecclesiastical excommunications and formed a 
cumulative argument in support of such claims. 
The most important portion of M. Bailly 's 
work is that in which he shows how actions 
of this kind should be brought and conducted, 
with specimens of plaints, pleas, replications, 
rejoinders, and decisions. First in order comes 
the petition of the inhabitants seeking redress 
(requeste des habitans), which is followed in 
regular succession by the declaration or plea of 
the inhabitants (plaidoyer des habitans), the 
defensive allegation or plea for the insects 
[plaidoyer pour les insectes), the replication of 
the inhabitants (replique des habitans), the re- 
joinder of the defendant (replique du defendeur), 
the conclusions of the bishop's proctor (conclu- 
sions du procureur episcopal), and the sentence 
of the ecclesiastical judge (sentence du juge 
d'eglise), which is solemnly pronounced in 
Latin. The pleadings on both sides are de- 
livered in French and richly interlarded with 
classical allusions and Latin quotations, being 
even more heavily weighted with the spoils of 
erudition than the set speech of a member of 
the British Parliament. 

96 The Criminal Prosecution and 

The following abridgment of the plea, in 
which the prosecuting attorney sets forth the 
cause of complaint, is a fair specimen of the 
forensic eloquence displayed on such occasions : 

" Gentlemen, these poor people on their 
knees and with tearful eyes, appeal to your sense 
of justice, as the inhabitants of the islands 
Majorica and Minorica formerly sent an embassy 
to Augustus Csesar, praying him for a cohort of 
soldiers to exterminate the rabbits, which were 
burrowing in their fields and consuming their 
crops. In the power of excommunication you 
have a weapon more effective than any wielded 
by that emperor to save these poor suppliants 
from impending famine produced by the 
ravages of little beasts, which spare neither the 
corn nor the vines, ravages like those of the boar 
that laid waste the environs of Calydon, as 
related by Homer in the first book of the Iliad, 
or those of the foxes sent by Themis to Thebes, 
which destroyed the fruits of the earth and the 
cattle and assailed even the husbandmen them- 
selves. You know how great are the evils 
which famine brings with it, and you have too 
much kindness and compassion to permit my 
clients to be involved in such distress, thus con- 
straining them to perpetrate cruel and unlawful 
deeds; nee enim rationem fatitur, nee ulla 
aequitate mitigatur, nee preee ulla flectitur 
esuriens populus: for a starving people is not 
amenable to reason, nor tempered by equity, nor 
moved by any prayer. Witness the mothers, 

Capital Punishment of Animals 97 

of whom it is recorded in the Fourth Book of 
the Kings, that they ate their own children, the 
one saying to the other : ' Give thy son that we 
may eat him to-day, and we will eat my son to- 
morrow.' " The advocate then discourses at 
length of the horrors of hunger and its dis- 
astrous effects upon the individual and the com- 
munity, lugging in what Milton calls a " horse- 
load of citations" from Arianus Marcellinus, 
Ovid and other Latin prosaists and poets, intro- 
duces an utterly irrelevant allusion to Joshua 
and the crafty Gibeonites, and concludes as 
follows : " The full reports received as the result 
of an examination of the fields, made at your 
command, suffice for your information concern- 
ing the damage done by these animals. It 
remains, therefore, after complying with the 
usual forms, only to adjudicate upon the case in 
accordance with the facts stated in the Petition 
of the Plaintiffs, which is right and reasonable, 
and, to this effect, to enjoin these animals from 
continuing their devastations, ordering them to 
quit the aforesaid fields and to withdraw to the 
place assigned them, pronouncing the necessary 
anathemas and execrations prescribed by our 
Holy Mother, the Church, for which your peti- 
tioners do ever pray." 

It is doubtful whether any speaking for Bun- 
combe in the halls of Congress or any spouting 
of an ignorant bumpkin in the moot-court of an 
American law-school ever produced such a 

98 The Criminal Prosecution and 

rhetorical hotchpotch of " matter and impertin- 
ency mixed " as the earnest plea, of which the 
above is a brief abstract. 

Rather more to the point, but equally over- 
burdened with legal lore and literary pedantry, 
is the rejoinder of the counsel for the insects : 

" Gentlemen, inasmuch as you have chosen 
me to defend these little beasts (bestioles), I 
shall, an it please you, endeavour to right them 
and to show that the manner of proceeding 
against them is invalid and void. I confess that 
I am greatly astonished at the treatment they 
have been subjected to and at the charges 
brought against them, as though they had com- 
mitted some crime. Thus information has been 
procured touching the damage said to have been 
done by them ; they have been summoned to 
appear before this court to answer for their 
conduct, and, since they are notoriously dumb, 
the judge, wishing that they should not suffer 
wrong on account of this defect, has appointed 
an advocate to speak in their behalf and to set 
forth in conflormity with right and justice the 
reasons, which they themselves are unable to 

"Since you have permitted me to appear in 
defence of these poor animals, I will state, in the 
first place, that the summons served on them is 
null and void, having been issued against 
beasts, which cannot and ought not to be cited 
before this judgment seat, inasmuch as such a 

Capital Punishment of Animals 99 

procedure implies that the parties summoned are 
endowed with reason and volition and are there- 
fore capable of committing crime. That this is 
not the case with these creatures is clear from 
the paragraph Si quadrupes, etc., in the first 
book of the Pandects, where we find these 
words : Nee enim potest animal injuriam fecisse, 
quod sensu caret. 

' ' The second ground, on which I base the 
defence of my clients, is that no one can be 
judicially summoned without cause, and whoever 
has had such a summons served renders himself 
liable to the penalty prescribed by the statute 
De poen. tern, litig. As regards these animals 
there is no causa justa litigandi; they are not 
bound in any manner, non tenentur ex con- 
tractu, being incompetent to make contracts 
or to enter into any compact or covenant what- 
soever, neque ex quasi contractu, neque ex 
stipulatione, neque ex pacta, and still less ex 
delicto seu quasi, can there be any question of a 
delict or any semblance thereof, since, as has 
just been shown, the rational faculties essential 
to the capability of committing criminal actions 
are wanting. 

" Furthermore, it is illicit to do that which is 
nugatory and of non-effect (qui ne porte coup) ; 
in this respect justice is like nature, which, as 
the philosopher affirms, does nothing mal a 
propos or in vain : Deus enim et Natura nihil 
operantur frustra. Now I leave it to you to 

loo The Criminal Prosecution and 

decide whether anything could be more futile 
than to summon these irrational creatures, 
which can neither speak for themselves, nor 
appoint proxies to defend their cause; still less 
are they able to present memorials stating 
grounds of their justification. If then, as I have 
shown, the summons, which is the basis of all 
judicial action, is null and void, the proceedings 
dependent upon it will not be able to stand : 
cum enim principalis causa non consistat, neque 
ea quae consequuntur locum habent." 

The counsel for the defence rests his argument, 
of which the extract just given may suffice as a 
sample, upon the irrationality and consequent 
irresponsibility of his clients. For this reason 
he maintains that the judge cannot appoint a 
procurator to represent them, and cites legal 
authorities to show that the incompetency of the 
principal implies the incompetency of the proxy, 
in conformity with the maxim : quod directe 
fieri prohibetur, per indirectum concedi non 
debet. In like manner the invalidity of the 
summons bars any charge of contempt of court 
and condemnation for contumacy. Further- 
more, the very nature of excommunication is 
such that it cannot be pronounced against them, 
since it is defined as extra ecclesiam positio, vel 
e qualibet communione, vel quolibet legitimo 
actu separatio. But these animals cannot be 
expelled from the Church, because they are not 
members of it and do not fall under its jurisdic- 

Capital Punishment of Animals 

tion, as the apostle Paul says : " Ye judge\±ier 
that are within and not them also that are v/i 
out." Excommunicatio afficit animam, non 
corpus, nisi per quandam consequentiam, cujus 
medicina est. The animal soul, not being 
immortal, cannot be affected by such sentence, 
which involves the loss of eternal salvation 
(quae vergit in, dispendium aeternae salutis). 

A still more important consideration is that 
these insects are only exercising an innate right 
conferred upon them at their creation, when God 
expressly gave them "every green herb for 
meat," a right which cannot be curtailed or 
abrogated, simply because it may be offensive to 
man. In support of this view he quotes pas- 
sages from Cicero's treatise De Officiis, the 
Epistle of Jude and the works of Thomas 
Aquinas. Finally, he maintains that his clients 
are agents of the Almighty sent to punish us 
for our sins, and to hurl anathemas against them 
would be to fight against God (s'en prendre a 
Dieu), who has said : "I will send wild beasts 
among you, which shall destroy you and your 
cattle and make you few in number." That all 
flesh has corrupted its way upon the earth, he 
thinks is as true now as before the deluge, and 
cites about a dozen lines from the Metamor- 
phoses of Ovid in confirmation of this fact. 
In conclusion he demands the acquittal of 
the defendants and their exemption from all 
further prosecution. 

I02 The Criminal Prosecution and 

The prosecuting attorney in his repHcation 
answers these objections in regular order, show- 
ing, in the first place, that, while the law may 
not punish an irrational creature for a crime 
already committed, it may intervene, as in the 
case of an insane person, to prevent the com- 
mission of a crime by putting the madman in a 
strait-jacket or throwing him into prison. He 
elucidates this principle by a rather far-fetched 
illustration from the legal enactments concerning 
betrothal and breach of promise of marriage. 
" It follows then inferentially that the aforesaid 
animals can be properly summoned to appear 
and that the summons is valid, inasmuch as this 
is done in order to prevent them from causing 
damage henceforth (d'ores en avant) and only 
incidentally to punish them for injuries already 

" To affirm that such animals cannot be 
anathematized and excommunicated is to doubt 
the authority conferred by God upon his dear 
spouse, the Church, whom he has made the 
sovereign of the whole world, having, in the 
words of the Psalmist, put all things under her 
feet, all sheep and oxen, the beasts of the field, 
the fowl of the air, the fish of the sea and what- 
soever passeth through the paths of the seas. 
Guided by the Holy Spirit she does nothing 
unwisely ; and if there is anything in which she 
should show forth her power it is in protecting 
and preserving the most perfect work of her 

Capital Punishment of Animals 103 

heavenly husband, to wit, man, who was made 
in the divine image and likeness." The orator 
then dilates on the grandeur and glory of man 
and interlards his harangue with quotations 
from sacred and profane writers, Moses, Paul, 
Pliny, Ovid, Silius Italicus and Pico di Miran- 
dola, and declares that nothing could be more 
absurd than to deprive such a being of the fruits 
of the earth for the sake of " vile and paltry 
vermin." In reply to the statement of Thomas 
Aquinas, quoted by the counsel for the defence, 
that it is futile to curse animals as such, the 
plaintiffs' advocate says that they are not viewed 
merely as animals, but as creatures doing harm 
to man by eating and wasting the products of 
the soil designed for human sustenance ; in other 
words he ascribes to them a certain diabolical 
character. " But why dwell upon this point, 
since besides the instances recorded in Holy 
Writ, in which God curses inanimate things and 
irrational creatures, we have an infinite number 
of examples of holy men, who have excommuni- 
cated noxious animals. It will suffice to mention 
one familiar to us all and constantly before our 
eyes in the town of Aix, where St. Hugon, 
Bishop of Grenoble, excommunicated the ser- 
pents, which infested the warm baths and killed 
many of the inhabitants by biting them. Now 
it is well known, that if the serpents in that place 
or in the immediate vicinity bite any one, the 
bite is no longer fatal. The venom of the reptile 
was stayed and annulled by virtue of the excom- 

I04 The Criminal Prosecution and 

munication, so that no hurt ensues from the bite, 
although the bite of the same kind of serpent 
outside of the region affected by the ban, is 
followed by death." 

That serpents and other poisonous reptiles 
could be deprived of their venom by enchantment 
and thus rendered harmless is in accord with 
the teachings of the Bible. Thus we read in 
Ecclesiastes (x. ii): "Surely the serpent will 
bite without enchantment," i.e. unless it be 
enchanted and its bite disenvenomed. A curious 
superstition concerning the adder is referred to 
in the Psalms (Iviii. 4, 5), where the wicked are 
said to be " like the deaf adder that stoppeth her 
ear; which will not hearken to the voice of 
charmers, charming never so wisely." The Lord 
is also represented by Jeremiah (viii. 17) as 
threatening to "send serpents, cockatrices, 
among you, which will not be charmed, and they 
shall bite you." It does not seem to have 
occurred to the prosecutor that the defendants 
might be locusts, which would not be excom- 

The objection that God has sent these insects 
as a scourge, and that to anathematize them 
would be to fight against him, is met by say- 
ing that to have recourse to the offices of the 
Church is an act of religion, which does not 
resist, but humbly recognizes the divine will and 
makes use of the means appointed for avert- 
ing the divine wrath and securing the divine 

Capital Punishment of Animals 105 

After the advocates had finished their plead- 
ings, the case was summed up by the episcopal 
procurator substantially as follows : 

" The arguments offered by the counsel for 
the defence against the proceedings institued by 
the inhabitants as complainants are worthy of 
careful consideration and deserve to be examined 
soberly and maturely, because the bolt of excom- 
munication should not be hurled recklessly and 
at random (a la volee), being a weapon of such 
peculiar energy and activity that, if it fails to 
strike the object against which it is hurled, it 
returns to smite him, who hurled it." [This 
notion that an anathema is a dangerous missile 
to him who hurls it unlawfully or for an 
unjust purpose, retroacting like an Australian 
boomerang, survives in the homely proverb : 
" Curses, like chickens, come home to roost."] 
The bishop's proctor reviews the speeches of the 
lawyers, but seems to have his brains somewhat 
muddled by them. " It is truly a deep sea," he 
says, "in which it is impossible to touch bottom. 
We cannot tell why God has sent these animals 
to devour the fruits of the earth ; this is for us 
a sealed book (lettres closes)." He suggests it 
may be ' ' because the people turn a deaf ear to 
the poor begging at their doors," and goes off 
into a long eulogy on the beauty of charity, with 
an anthology of extracts from various writers in 
praise of alms-giving, among which is one from 
Eusebius descriptive of hell as a cold region. 

io6 The Criminal Prosecution and 

where the wailing and gnashing of teeth are 
attributed to the torments of eternal frost instead 
of everlasting fire (liberaberis ab illo frigore, in 
quo erit fletus et stridor dentium). Again, the 
plague of insects may be due to irreverence 
shown in the churches, which, he declares, have 
been changed from the house of God into houses 
of assignation. On this point he quotes from 
Tertullian, Augustirrfe, and Numa Pompilius, 
and concludes by recommending that sentence of 
excommunication be pronounced upon the 
insects, and that the prayers and penances, 
customary in such cases, be imposed upon the 

After this discourse, which reads more like a 
homily from the pulpit than a plea at the bar 
and in the mouth of the bishop's proctor is 
simply an oratio pro domo, the ofificial gave 
judgment in favour of the plaintiffs. The 
sentence, which was pronounced in Latin befit- 
ting the dignity and solemnity of the occasion, 
condemned the defendants to vacate the premises 
within six days on pain of anathema. 

The official begins by stating the case as that 
of " The People versus Locusts," declaring that 
the guilt of the accused has been clearly proved 
" by the testimony of worthy witnesses and, 
as it were, by public rumour," and inasmuch as 
the people have humbled themselves before God 
and supplicated the Church to succour them in 
their distress, it is not fitting to refuse them help 

Capital Punishment of Animals 107 

and solace. " Walking in the footsteps of the 
fathers, sitting on the judgment-seat, having 
the fear of God before our eyes and confiding 
in his mercy, relying on the counsel of experts, 
we pronounce and publish our sentence as 
follows : 

" In the name and by virtue of God, the omni- 
potent. Father, Son and Holy Spirit, and of 
Mary, the most blessed Mother of our Lord Jesus 
Christ, and by the authority of the holy apostles 
Peter and Paul, as well as by that which has 
made us a functionary in this case, we admonish 
by these presents the aforesaid locusts and grass- 
hoppers and other animals by whatsoever name 
they may be called, under pain of malediction 
and anathema to depart from the vineyards and 
fields of this district within six days from the 
publication of this sentence and to do no further 
damage there or elsewhere." If, on the expira- 
tion of this period, the animals have refused to 
obey this injunction, then they are to be 
anathematized and accursed, and the inhabit- 
ants of all classes are to beseech " Almighty 
God, the dispenser of all good gifts and the 
dispeller of all evils," to deliver them from so 
great a calamity, not forgetting to join with 
devout supplications the performance of all good 
works and especially "the payment of tithes 
without fraud according to the approved custom 
of the parish, and to abstain from blasphemies 
and such other sins as are of a public and 

io8 The Criminal Prosecution and 

particularly offensive character." (Vide Ap- 
pendix B.) 

It is doubtful whether one could find in the 
ponderous tomes of scholastic divinity anything 
surpassing in comical non sequiturs and sheer 
nonsense the forensic eloquence of eminent 
lawyers as transmitted to us in the records of 
legal proceedings of this kind. Although the 
counsel for the defendants, as we have seen, 
ventured to question the propriety and validity 
of such prosecutions, his scepticism does not 
seem to have been taken seriously, but was 
evidently smiled at as the trick of a pettifogger 
bound to use every artifice to clear his clients. 
In the writings of mediaeval jurisprudents the 
right and fitness of inflicting judicial punishment 
upon animals appear to have been generally 
admitted. Thus Guy Pape, in his Decisions of 
the Parliament of Grenoble (Qu. 238), raises the 
query, whether a brute beast, if it commit a 
crime, as pigs sometimes do in devouring chil- 
dren, ought to suffer death, and answers the 
question unhesitatingly in the affirmative : si 
animal brutum delinquat, sicut quandoque 
faciunt porci qui comedunt pueros, an debeat 
mori? Dico quod sic." Jean Duret, in his 
elaborate Treatise on Pains and Penalties 
(Traicte des Peines et des Amendes, p. 250; cf. 
Themis Jurisconsulte, VIII. p. 57), takes the 
same view, declaring that " if beasts not only 
wound, but kill and eat any person, as experi- 

Capital Punishment of Animals 109 

ence has shown to happen frequently in cases 
of- little children being eaten by pigs, they 
should pay the forfeit of their lives and be con- 
demned to be hanged and strangled, in order to 
efface the memory of the enormity of the deed." 
The distinguished Belgian jurist, Jodocus 
Damhouder, discusses this question in his 
Rerum Criminalium Praxis (cap. CXLIL), and 
holds that the beast is punishable, if it 
commits the crime through natural malice, and 
not through the instigation of others, but 
that the owner can redeem it by paying for 
the damage done; nevertheless he is not 
permitted to keep ferocious or malicious beasts 
and let them run at large, so as to be a con- 
stant peril to the community. Occasionally 
a more enlightened jurist had the common-sense 
and courage to protest against such perversions 
and travesties of justice. Thus Pierre Ayrault, 
lieutenant-criminel au siege presidial d' Angers, 
published at Angers, in 1591, a small quarto 
entitled : Des Proces faicts au Cadaver, aux 
Cendres, a la Memoire, aux Bestes brutes, aux 
Choses inanimees et aux Contumax, in which 
he argued that corpses, the ashes and the 
memory of the dead, brute beasts and inanimate 
things are not legal persons (legales homines) 
and therefore do not come within the jurisdiction 
of a court. Curiously enough a case somewhat 
analogous to those discussed by Pierre Ayrault 
was adjudicated upon only a few years ago. A 

1 1 o The Criminal Prosecution and 

Frenchman bequeathed his property to his own 
corpse, in behalf of which his entire estate was 
to be administered, the income to be expended 
for the preservation of his mortal remains and 
the adornment of the magnificent mausoleum in 
which they were sepulchred. His heirs-at-law 
contested the will, which was declared null and 
void by the court on the ground that " a subject 
deprived of individuality or of civil personality " 
could not inherit. The same principle would 
apply to the infliction of penalties upon such 
subjects. The only kind of legacy that will 
cause a man's memory to be cherished is the 
form of bequest which makes the public weal 
his legatee. The Chinese still hold to the bar- 
barous custom of bringing corpses to trial and 
passing sentence upon them. On the 6th of 
August, 1888, the cadaver of a salt-smuggler, 
who was wounded in the capture and died in 
prison, was brought before the criminal court 
in Shanghai and condemned to be beheaded. 
This sentence was carried out by the proper 
officers on the place of execution outside of the 
west gate of the city. 

Felix Hemmerlein, better known as Malleolus, 
a distinguished doctor of canon law and proto- 
martyr of religious reform in Switzerland, states 
in his Tractatus de Exorcismis, that in the four- 
teenth century the peasants of the Electorate of 
Mayence brought a complaint against some 
Spanish flies, which were accordingly cited to 

Capital Punishment of Animals 1 1 1 

appear at a specified time and answer for their 
conduct; but "in consideration of their small 
size and the fact that they had not yet reached 
their majority," the judge appointed for them a 
curator, who "defended them with great 
dignity " ; and, although he was unable to pre- 
vent the banishment of his wards, he obtained 
for them the use of a piece of land, to which they 
were permitted peaceably to retire. How they 
were induced to go into this insect reservation 
and to remain there we are not informed. The 
Church, as already stated, claimed to possess the 
power of effecting the desired migration by 
means of her ban. If the insects disappeared, 
she received full credit for accomplishing it; if 
not, the failure was due to the sins of the people ; 
in either case the prestige of the Church was 
preserved and her authority left unimpaired. 

In 15 19, the commune of Stelvio, in Western 
Tyrol, instituted criminal proceedings against 
the moles or field-mice,^ which damaged the 

' These animals are spoken of as unverniinftige Thierlein 
genannt Lutmduse. Lut might be derived from the Old 
German Mt (Laut, Schrei), in which case Lutmaus would 
mean shrew-mouse ; but it is more probably from lutum 
(loam, mould), and signifies mole or field-mouse. Field-mice 
are exceedingly prolific rodents, and in modern as well as in 
mediaeval times have often done grievous harm to husbandry 
and arboriculture by consuming roots and fruits and gnawing 
the bark of young trees. The recklessness of hunters in 
exterminating foxes, hedgehogs, polecats, weasels, buzzards, 
crows, kites, owls and similar beasts and birds, which are 
destructive of field-mice, has frequently caused the latter to 
multiply so as to become a terrible plague. This was the 

1 1 2 The Criminal Prosecution and 

crops "by burrowing and throwing up the 
earth, so that neither grass nor green thing 
could grow." But " in order that the said mice 
may be able to show cause for their conduct by 
pleading their exigencies and distress," a pro- 
curator, Hans Grinebner by name, was charged 
with their defence, " to the end that they may 
have nothing to complain of in these proceed- 
ings." Schwarz Mining was the prosecuting 
attorney, and a long list of witnesses is given, 
who testified that the serious injury done by 
these creatures rendered it quite impossible for 
tenants to pay their rents. The counsel for the 
defendants urged in favour of his clients the 
many benefits which they conferred upon the 
community, and especially upon the agricultural 
class by destroying noxious insects and larvae 
and by stirring up and enriching the soil, and 
concluded by expressing the hope that, if they 
should be sentenced to depart, some other 
suitable place of abode might be assigned to 
them. He demanded, furthermore, that they 
should be provided with a safe conduct securing 
them against harm or annoyance from dog, cat 
or other foe. The judge recognized the reason- 
ableness of the latter request, in its application 
to the weaker and more defenceless of the 
culprits, and mitigated the sentence of perpetual 
banishment by ordering that "a free safe-con- 
case in England in 1813-14, and in Germany in 1822, and 
again in 1856. 

Capital Punishment of Animals 1 1 3 

duct and an additional respite of fourteen days 
be granted to all those which are with young 
and to such as are yet in their infancy; but on 
the expiration of this reprieve each and every 
must be gone, irrespective of age or previous 
condition of pregnancy." (Vide Appendix C.) 
An old Swiss chronicler named Schilling 
gives a full account of the prosecution and 
anathematization of a species of vermin called 
inger, which seems to have been a coleopterous 
insect of the genus Brychus and very destruc- 
tive to the crops- The case occurred in 1478 
and the trial was conducted before the Bishop 
of Lausanne by the authority and under the 
jurisdiction of Berne. The first document re- 
corded is a long and earnest declaration and 
admonition delivered from the pulpit by a 
Bernese parish-priest, Bernhard Schmid, who 
begins by stating that his " dearly beloved " are 
doubtless aware of the serious injury done by the 
inger and of the suffering which they have 
caused. The Leutpriester, as he is termed, 
gives a brief history of the matter and of the 
measures taken to procure relief. The mayor 
and common council of Berne were besought in 
their wisdom to devise some means of staying 
the plague, arid after much earnest deliberation 
they held counsel with the Bishop of Lausanne, 
who " with fatherly feeling took to heart so great 
affliction and harm " and by an episcopal man- 
date enjoined the inger from committing further 

114 The Criminal Prosecution and 

depredations. After exhorting the people to 
entreat God by " a common prayer from house 
to house ' ' to remove the scourge, he proceeds to 
warn and threaten the vermin in the following 
manner: "Thou irrational and imperfect crea- 
ture, the inger, called imperfect because there 
was none of thy species in Noah's ark at the time 
of the great bane and ruin of the deluge, thou 
art now come in numerous bands and hast done 
immense damage in the ground and above the 
ground to the perceptible diminution of food for 
men and animals; and to the end that such 
things may cease, my gracious Lord and 
Bishop of Lausanne has commanded me in his 
name to admonish you to withdraw and to 
abstain; therefore by his command and in his 
name and also by virtue of the high and holy 
trinity and through the merits of the Redeemer 
of mankind, our Saviour Jesus Christ, and in 
virtue of and obedience to the Holy Church, I 
do command and admonish you, each and all, to 
depart within the next six days from all places 
where you have secretly or openly done or might 
still do damage, also to depart from all fields, 
meadows, gardens, pastures, trees, herbs, and 
spots, where things nutritious to men and to 
beasts spring up and grow, and to betake your- 
selves to the spots and places, where you and 
your bands shall not be able to do any harm 
secretly or openly to the fruits and aliments 
nourishing to men and beasts. In case, how- 

Capital Punishment of Animals 1 1 5 

ever, you do not heed this admonition or obey 
this command, and think you have some reason 
for not complying with them, I admonish, notify 
and summon you in virtue of and obedience to 
the Holy Church to appear on the sixth day after 
this execution at precisely one o'clock after 
midday at Wifflisburg, there to justify your- 
selves or to answer for your conduct through 
your advocate before His Grace the Bishop 
of Lausanne or his vicar and deputy. There- 
upon my Lord of Lausanne or his deputy will 
proceed against you according to the rules of 
justice with curses and other exorcisms, as is 
proper in such cases in accordance with legal 
form and established practice." The priest then 
exhorts his " dear children " devoutly to beg 
and to pray on their knees with Paternosters and 
Ave Marias to the praise and honour of the high 
and holy trinity, and to invoke and crave the 
divine mercy and help in order that the inger 
may be driven away. (Vide Appendix D.) 

There is no further record of proceedings at 
this time, and it is highly probable that the 
detection of some technical error rendered it 
necessary to postpone the case, since this petti- 
fogger's trick was almost always resorted to and 
proved generally successful in procuring an 
adjournment. At any rate either this or a pre- 
cisely similar trial occurred in the following 
year. Early in May 1479, the mayor and common 
council of Berne sent copies of the monitorium 

1 1 6 The Criminal Prosecution and 

and citation issued by tiie Bishop of Lausanne 
to tiieir representative for distribution among the 
priests of the afflicted parishes, in order that it 
might be promulgated from their respective 
pulpits and thus brought to the knowledge of 
the delinquents. About a week later, on May 15, 
the same authorities sent also a letter to the 
Bishop of Lausanne asking for new instructions 
in the matter, as they were not certain how they 
should proceed, urging that immediate steps 
should be taken, as the further delay would be 
" utterly intolerable." This impatience would 
seem to imply that the anathema had been 
hanging fire for some time and that the prosecu- 
tion was identical with that of the preceding 

The appointed term having elapsed and the 
inger still persisting in their obduracy, the 
mayor and common council of Berne issued the 
following document conferring plenipotentiary 
power of attorney on Thiiring Fricker to pro- 
secute the case: " We, the mayor, council and 
commune of the city of Berne, to all those of the 
bishopric of Lausanne, who see, read, or hear 
this letter. We make known that after mature 
deliberation we have appointed, chosen and 
deputed and by virtue of the present letter do 
appoint, choose and depute the excellent Thiiring 
Fricker, doctor of the liberal arts and of laws, 
our now chancellor, to be our legal delegate 
and agent and that of our commune, as well as 

Capital Punishment of Animals 1 1 7 

of all the lands and places of the bishopric of 
Lausanne, which are directly or indirectly sub- 
ject and appurtenant to us and of which a com- 
plete list is herein contained. And indeed he has 
assumed this general and special attorneyship, 
whereof the one shall not be prejudicial to the 
other, in the case which we have undertaken and 
prosecute and have determined to prosecute before 
the court of the right reverend in Christ Benedict 
de Montferrand, Bishop of Lausanne, Count and 
our most worthy Superior, against the noxious 
host of the inger {brucorum), which creeping 
secretly in the earth devastate the fields, 
meadows and all kinds of grain, whereby with 
grievous wrong they do detriment to the ever- 
living God, to whom the tithes belong, and to 
men, who are nourished therewith and owe 
obedience to him. In this cause he shall act 
in our stead, and in the name of all of us collect- 
ively and severally shall plead, demur, reply, 
prove by witnesses, hear judgment or judg- 
ments, appoint other defenders and in general 
and specially do each and every thing which the 
importance of the cause may demand and which 
we ourselves in case of our presence would be 
able to do. We solemnly promise in good faith 
that all and the whole of what may be trans- 
acted, performed, provided, pledged, and or- 
dained in this cause by our aforesaid attorney 
or by the proxy appointed by him shall be firmly 
and gratefully observed by us, with the express 

1 1 8 The Criminal Prosecution and 

renunciation of each and every thing that might 
either by right or actually, in any wise, either 
wholly or partially impair, weaken or assail our 
ordainment, conclusion and determination, also 
over against any reservation of right, which per- 
mits a general renunciation, even if no special 
reservation has preceded, with the exclusion of 
every fraud and every deceit. In corroboration 
and confirmation of the aforesaid we ratify this 
letter with the warranty of our seal. Given on 
the twenty-second of May 1479." 

The trial began a couple of days later and was 
conducted with less " of the law's delay " than 
usual, inasmuch as it ended on the twenty-ninth 
day of the same month. The defender of the 
insects was a certain Jean Perrodet of Freiburg, 
who according to all accounts was a very ineffi- 
cient advocate and does not appear to have con- 
tested the case with the ability and energy which 
the interests of his clients required. The sen- 
tence of the court with the appended anathema 
of the bishop was as follows: "Ye accursed 
uncleanness of the inger, which shall not be 
called animals nor mentioned as such, ye have 
been heretofore by virtue of the appeal and 
admonition of our Lord of Lausanne enjoined 
to withdraw from all fields, grounds and estates 
of the bishopric of Lausanne, or within the next 
six days to appear at Lausanne, through your 
proctor, to set forth and to hear the cause of 
your procedure, and to act with just judgment 

Capital Punishment of Animals 1 1 9 

either for or against you, pursuant to the said 
citation. Thereupon our gracious Lords of 
Berne solicited by their mandate such a day in 
court at Lausanne, and there before the tribunal 
renewed their plaint in their name and in that of 
all the provinces of the said bishopric, and your 
reply thereto through your proctor has been fully 
heard, and the legal terms have been justly 
observed by both parties, and a lawful decision 
pronounced word for word in this wise : 

" We, Benedict of Montferrand, Bishop of 
Lausanne, etc., having heard the entreaty of the 
high and mighty lords of Berne against the 
inger and the ineffectual and rejectable answer 
of the latter, and having thereupon fortified our- 
selves with the Holy Cross, and having before 
our eyes the fear of God, from whom alone all 
just judgments proceed, and being advised in 
this cause by a council of men learned in the 
law, do therefore acknowledge and avow in this 
our writing that the appeal against the detest- 
able vermin and inger, which are harmful to 
herbs, vines, meadows, grain and other fruits, 
is valid, and that they be exorcised in the person 
of Jean Perrodet, their defender. In conformity 
therewith we charge and burden them with our 
curse, and command them to be obedient and 
anathematize them in the name of the Father, 
the Son and the Holy Ghost, that they turn 
away from all fields, grounds, enclosures, seeds, 
fruits and produce, and depart. By virtue of 

I20 The Criminal Prosecution and 

the same sentence I declare and affirm that you 
are banned and exorcised, and through the 
power of Almighty God shall be called accursed 
and shall daily decrease whithersoever you may 
go, to the end that of you nothing shall remain 
save for the use and profit of man. Adiungendo 
aliquid in devotionem populi." The phrase das 
si beswdrt werden in die person Johannis Perro- 
deti its beschirmers does not imply that the 
vermin or the devils, of which they were sup- 
posed, to be incarnations, were to be conjured 
into him, but refer to him merely as their proctor 
and legal representative. The results of the 
prosecution, which had been awaited with 
intense and anxious interest by the people, were 
received with great joy, and the Bernese govern- 
ment ordered a full report of the proceedings to 
be made. The ecclesiastical anathema, how- 
ever, proved to be brutum julmen; nothing more 
came of it, says Schilling, " owing to our sins." 
Another chronicler adds that God permitted the 
inger to remain as a plague and a punishment 
until the people repented of their wickedness and 
gave evidence of their love and gratitude to 
Him, namely, by giving to the Church tithes of 
what the insects had not destroyed. 

The Swiss priest in his malediction declares 
that the inger were not in Noah's ark and even 
denies that they are animals properly speaking, 
stigmatizing them as living corruption, products 
of spontaneous generation perhaps, or more 

Capital Punishment of Animals 121 

probably creations of the devil. This position 
was assumed in order to escape the gross im- 
propriety and glaring incongruity of having the 
Church of God curse the creatures which God 
had made and pronounced very good, and after- 
wards took pains to preserve from destruction 
by the deluge. This difficulty, always a serious 
one, was, as we have seen, one of the chief 
points urged by the counsel for the defence in 
favour of his clients. 

Malleolus gives the following formula for 
banning serpents and expelling them from 
human habitations, inculcating incidentally the 
iniquity of perjury and judicial injustice : " By 
virtue of this ban and conjuration I command 
you to depart from this house and cause it to be 
as hateful and intolerable to you, as the man, 
who knowingly bears false witness or pronounces 
an unjust sentence, is to God." Sometimes the 
exorcism was in the form of a prayer, as, for 
example, in that used for the purgation and 
disinfection of springs and water-courses: "O 
Lord Jesus, thou who didst bless the river 
Jordan and wast baptized in it and hast purified 
and cleansed it to the end that it might be a 
healing element for the redemption from sin, 
bless, sanctify and purify this water, so that there 
may be left in it nothing noxious, nothing 
pestiferous or contagious, nothing pernicious, 
but that everything in it may be pure and im- 
maculate, in order that we may use whatever 

122 The Criminal Prosecution and 

is created in it for our welfare and to thy glory, 
through our Lord Jesus Christ. Amen." 

In a Latin protocol of legal proceedings in 
Crollolanza's Storia del Contado di Chiavenna 
it is recorded that on June 26, 1659, Capt. J. B. 
Pestalozzi came, in behalf of the communes of 
Chiavenna, Mese, Gordona, Prada and Samolico, 
before the commissioner Hartmann Planta and 
brought complaint against certain caterpillars on 
account of the devastations committed b)' them, 
demanding that these hurtful creatures should 
be summoned by the proper sheriff to appear in 
court on June 28 at a specified hour in order 
to have a curator and defender appointed, who 
should answer for them to the plaintiffs. A 
second document, dated June 28, 1659, and 
signed by the notary Battista Visconti, certifies 
that the said summons had been duly issued and 
five copies of the same been posted each on a 
tree in the five forests in the territory of the 
aforesaid five communes. A third document of 
the same date required the advocate of the 
accused, Cesare de Peverello, to appear before 
the court on the following Tuesday, July i, in 
behalf of his recusant clients, who were charged 
with trespassing upon the fields, gardens and 
orchards and doing great damage therein, instead 
of remaining in their habitat, the forest. The 
prosecutors required that they should seek their 
food in wild and wooded places and cease from 
ravaging cultivated grounds. A fourth docu- 

Capital Punishment of Animals 123 

ment contains an account of the trial ; the plead- 
ings of the respective parties, so far as they are 
preserved, do not differ essentially from those 
already quoted. In the fifth and final document 
the court recognizes the right of the caterpillars 
to life, liberty, and the pursuit ot happiness, pro- 
vided the exercise of this right " does not destroy 
or impair the happiness of man, to whom all 
lower animals are subject." Accordingly a 
definite place of abode is to be assigned to them 
and various places are proposed. The protocol 
is incomplete, so that we are left in ignorance 
of the ultimate decision. The whole is written 
in execrable Latin quite worthy of the subject. 
More than half-a-century later the Franciscan 
friars of the cloister of St. Anthony in the 
province of Piedade no Maranhao, Brazil, were 
greatly annoyed by termites, which devoured 
their food, destroyed their furniture, and even 
threatened to undermine the walls of the 
monastery. Application was made to the bishop 
for an act of interdiction and excommunication, 
and the accused were summoned to appear before 
an ecclesiastical tribunal to give account of their 
conduct. The lawyer appointed to defend them 
urged the usual plea about their being God's 
creatures and therefore entitled to sustenance, 
and made a good point in the form of an argu- 
mentum ad monachum by praising the industry 
of his clients, the white ants, and declaring them 
to be in this respect far superior to their pro- 

124 The Criminal Prosecution and 

secutors, the Gray Friars. He also maintained 
that the termites were not guilty of criminal 
aggression, but were justified in appropriating 
the fruits of the fields by the right derived from 
priority of possession, inasmuch as they had 
occupied the land long before the monks came 
and encroached upon their domain. The trial 
lasted for some time and called forth remarkable 
displays of legal learning and forensic elo- 
quence, with numerous citations of sacred and 
profane authorities on both sides, and ended in a 
compromise, by the terms of which the plaintiffs 
were obliged to provide a suitable reservation 
for the defendants, who were commanded to go 
thither and to remain henceforth within the 
prescribed limits. In the chronicles of the 
cloister it is recorded, under date of Jan. 17 13, 
that no sooner was the order of the prelatic judge 
promulgated by being read officially before the 
hills of the termites than they all came out and 
marched in columns to the place assigned. The 
monkish annalist regards this prompt obedience 
as conclusive proof that the Almighty endorsed 
the decision of the court. [Cited by Emile Angel 
on the authority of Manoel Bernardes' Nova Flo- 
resta, ou Sylva de varios apophthegmas e ditos 
sentencios espirituaes e moraes, etc. Vol. V., 
Lisbod, 1747.] 

About the middle of the sixteenth century the 
inhabitants of several villages in Aargau were 
greatly annoyed by swarms of gadflies and 

Capital Punishment of Animals 125 

petitioned the Bishop of Constance for relief. In 
the episcopal rescript, written and signed by the 
vidame Georg Winterstetter, the people are 
enjoined to abstain from dancing on Sundays 
and feast days, from all forms of libidinousness, 
gambling with cards or dice and other frivolities. 
These injunctions are followed by prayer and the 
usual formulas of conjuration and exorcism. 
The original document was written in Latin and 
preserved in the archives of Baden in Switzer- 
land, but is now lost. In 1566 the Landamman 
of Unterwalden, Johannes Wirz, took a German 
translation of it home with him to be used in 
case of need against the " vergifteten Wiirmer," 
and deposited it in the archives of Obwalden, 
where it still remains. It was published in 1898 
by Dr. Merz. 

In Protestant communities, the priest as exor- 
cist has been superseded, to a considerable 
extent, by the professional conjurer, who in 
some portions of Europe is still employed to save 
crops from devouring insects and similar 
plagues. A curious instance of this kind is 
recorded in Gbrres' Historisch-Politische Blatter 
for 1845 (Heft VII. p. 516). A Protestant gentle- 
man in Westphalia, whose garden was devastated 
by worms, after having tried divers vermicidal 
remedies in vain, resolved to have recourse to a 
conjurer. The wizard came and walked about 
among the vegetables, touching them with a 
wand and muttering enchantments. Some work- 

126 The Criminal Prosecution and 

men, who were repairing tiie roof of a stable 
near by, made fun of this hocus-pocus and began 
to throw bits of lime at the conjurer. He re- 
quested them to desist, and finally said : " If you 
don't leave me in peace, I shall send all the 
worms up on the roof." This threat only excited 
the hilarity of the scoffers, who continued to ridi- 
cule and disturb him in his incantations. There- 
upon he went to the nearest hedge, cut a 
number of twigs, each about a finger in length, 
and placed them against the wall of the stable. 
Soon the vermin began to abandon the plants 
and, crawling in countless numbers over the 
twigs and up the wall, took complete possession 
of the roof. In less than an hour the men were 
obliged to stop working and stood in the court 
below covered with confusion and cabbage- 

The writer, who relates this strange incident, 
fully believes that it actually occurred, and 
ascribes it to " the force of human faith and the 
magnetic power of a firm will over nature." 
This, too, is the theory held by Paracelsus, who 
maintained that the effectiveness of a curse lay 
in the energy of the will, by which the wish, so 
to speak, concretes into a deed, just as anger 
directs the arm and actualizes itself in a blow. 
By "fervent desire" merely, without any 
physical effort or aggressive act, he deemed it 
possible to wound a man's body or to pierce it 
through as with a sword. He also held that 

Capital Punishment of Animals 127 

brutes are more easily exorcised or accursed than 
men, "for the spirit of man resists more than 
that of the brute." Similar notions were enter- 
tained nearly a century later by Jacob Boehme, 
who defines magic as " doing in the spirit of the 
will," an idea which finds more recent and more 
scientific expression in Schopenhauer's doctrine 
of "the objectivation of the will." Indeed, 
Schopenhauer's postulate of the will as the sole 
energy and actuality in the universe is only the 
philosophic statement of an assumption, upon 
which magicians and medicine-men, enchanters, 
exorcists and anathematizers have acted more or 
less in all ages. We have a striking illustration 
of the workings of some such mysterious, quasi- 
hyperphysical force in hypnotism, the reality of 
which it is no longer possible to deny, however 
wonderful and incomprehensible its manifesta- 
tions may appear. 

It is natural that a religion of individual initi- 
ative and personal responsibilty, like Protestant- 
ism, should put less confidence in theurgic 
machinery and formularies of ex-cathedral 
execration than a religion like Catholicism, in 
which man's spiritual concerns are entrusted to 
a hierarchical corporation to be managed accord- 
ing to traditional and infallible methods. This 
tendency crops out in a decree published at 
Dresden, in 1559, by "Augustus Duke and 
Elector," wherein he commends the " Christian 
zeal of the worthy and pious parson, Daniel 

128 The Criminal Prosecution and 

Greysser," for having " put under ban the spar- 
rows, on account of their unceasing and ex- 
tremely vexatious chatterings and scandalous 
unchastity during the sermon, to the hindrance 
of God's word and of Christian devotion." But 
the Saxon parson, unlike the Bishop of Trier, 
did not expect that his ban would cause the 
offending birds to avoid the church or to fall 
dead on entering it. He relied less on the 
directly coercive or withering action of the curse 
than on the human agencies, which he might 
thereby set at work for the accomplishment of his 
purpose. By his proscription he put the culprits 
out of the pale of public sympathy and protec- 
tion and gave them over as a prey to the spoiler, 
who was persuaded that he was doing a pious 
work by exterminating them. It was solemnly 
enjoined upon the hunter and the fowler to lie in 
wait for the anathematized sparrows with guns 
and with snares (durch mancherlei visirliche 
und listige Wege); and the Elector issued his 
decree in order to enforce this duty on all good 
Christians. (See Appendix E.) 

A faded and somewhat droll survival of 
ecclesiastical excommunication and exorcism is 
the custom, still prevailing in European 
countries and some portions of the United States, 
of serving a writ of ejectment on rats or simply 
sending them a friendly letter of advice in order 
to induce them to quit any house, in which their 
presence is deemed undesirable. Lest the rats 

Capital Punishment of Animals 129 

should overlook and thus fail to read the epistle, 
it is rubbed with grease, so as to attract their 
attention, rolled up and thrust into their holes. 
Mr. William Wells Newell, in a paper on 
" Conjuring Rats," printed in The Journal of 
American Folk-Lore (Jan.-March, 1892), gives a 
specimen of such a letter, dated, " Maine, 
Oct. 31, 1888," and addressed in business style 
to " Messrs. Rats and Co." The writer begins 
by expressing his deep interest in the welfare of 
said rats as well as his fears lest they should find 
their winter quarters in No. i, Seaview Street, 
uncomfortable and poorly supplied with suitable 
food, since it is only a summer residence and is 
also about to undergo repairs. He then suggests 
that they migrate to No. 6, Incubator Street, 
where they "can live snug and happy" in a 
splendid cellar well stored with vegetables of all 
kinds and can pass easily through a shed lead- 
ing to a barn containing much grain. He con- 
cludes by stating that he will do them no harm if 
they heed his advice, otherwise he shall be forced 
to use " Rough on Rats." This threat of resort- 
ing to rat poison in case of the refusal to accept 
his kind counsel is all that remains of the once 
formidable anathema of the Church. 

In Scotland, when these domestic rodents 
became too troublesome, people of the lower 
classes are wont to post the following notice on 
the walls of their houses : 

" Ratton and mouse, 
Lea' the puir woman's house. 

130 The Criminal Prosecution and 

Gang awa' owre by to 'e mill, 

And there ane and a' ye'U get your fill." 

In order to make the conjuration effective some 
particular abode must be assigned to them ; it is 
not sufficient to bid them begone, but they are 
to be told to go to a definite place. The fact that 
they are usually sent across a river or brook may 
indicate a lingering tradition of their demoniacal 
character, since, according to a widespread 
popular superstition, a water-course is a barrier 
to hobgoblins and evil spirits : 

"A running stream they dare na cross." 

In this case the rats, as imps of Satan, having 
reached their destination, would find it impos- 
sible to return. 

It was in Ireland, the native realm of bulls and 
like incongruities, that conjuring or " rhyming " 
rats seems to have been most common, if we may 
judge from the manner in which it is alluded to 
by the Elizabethan poets. Thus in As you 
Like It Rosalind says in reference to Orlando's 
verses: "I was never so be-rhymed since 
Pythagoras' time, that I was an Irish rat, which 
I can hardly remember." Randolph declares: 

" My poets 
Shall with a satire, steep'd in gall and vinegar, 
Rhime 'em to death, as they do rats in Ireland." 

Ben Jonson is still more specific : 

"Rhime 'em to death, as they do Irish rats, 
In drumming tunes." 

Capital Punishment of Animals 131 

From this reference to the mode of conjuring it 
appears that the repeating of the rhymes was 
accompanied with the beating of a drum, as is 
still the usage in France. From the very earliest 
times a peculiar magical potency has been 
ascribed to words woven into rhythmic form. 
The fascination which metrical expression, even 
as a mere jingle and jargon, still retains for the 
youth of the individual was yet far more strongly 
felt in the youth of the race. The simple song 
was intoned as a spell and the rude chant 
mumbled as a charm. 

In France the conjuration of field-mice bears a 
more distinctly religious stamp. On the first 
Sunday in Lent, the so-called Feast of the 
Torches (la Fete des Brandons ou des Bures), 
the peasants wander in all directions through the 
fields and orchards with lighted torches of 
twisted straw, uttering the following incantation, 
which not only threatens to burn the whiskers of 
obdurate mice, but also hints at the wine- 
bibbing propensities of the curate : 

" Sortez, sortez d'ici, mulcts ! 
Ou je vais vous bruler les crocs ! 
Quittez, quittez ces bids ! 
AUez, vous trouverez 
Dans la cave du curd 
Plus k boire qu'k manger." 

The form of imprecation varies in different 
provinces, but usually includes some threat of 
breaking the bones or burning the beards of the 

132 The Criminal Prosecution and 


refractory rodents, in case they refuse to quit the 
close, as in the following summons : 

"Taupes et mulcts, 
Sors de mon clos, 
Ou je te casse les os ; 
Barbassione ! Si tu viens dans non clos, 
Je te brule la barbe jusqu'aux os." 

The utterance of these words is emphasized by 
loud and discordant noises of cat-calls, tin horns, 
and similar instruments of " Callithumpian " 

Gregory, who was Bishop of Tours in the 
latter half of the sixth century, states in his 
History of the Franks (VIII. 35) that bronze 
talismans representing dormice and serpents were 
used in Paris to protect the city against the rav- 
ages of these creatures ; and when the town of Le 
Mans was rebuilt after its destruction by fire in 
1 145, a toad with a gold chain round its neck, 
was enclosed in a block of stone as a preservative 
against venomous reptiles. (Le Corvasier : 
Hist, des Eveques du Mans, 1648, p. 441. Cf. 
Desnoyers : Recherches, etc., p. 7.) 

The use of the above-mentioned means of con- 
juration is unquestionably of very ancient date. 
Thus in a treatise on agriculture entitled to. 
yemiioviKA and consisting of twenty books, written 
in the tenth century by the Bithynian Byzantine, 
Kassianos Bassos, the following prescription is 
given for getting rid of field-mice : 

" Take a slip of paper and write on it these 

Capital Punishment of Animals 133 

words : I adjure you, O mice, who dwell here 
not to injure me yourselves nor to permit any 
other mouse to do so; and I make over to you 
this field (describing it). But should I find you 
staying here after having been warned, with the 
help of the mother of the gods I will cut you in 
seven pieces." The author quotes this recipe, 
in order, as he says, that nothing may remain 
unrecorded, but expressly declares that he has no 
confidence in its efficiency and advises the hus- 
bandman to put his trust in good rat-bane. 
Bassos derived the materials for his popular 
encyclopasdia chiefly from the " Geoponics " 
composed by Anatolios and Didymos some six 
centuries earlier, and even most of his citations 
of classical writers are taken from the same 
sources. That the above-mentioned exorcism is 
pagan in its origin is evident from the invocation 
of the aid of Cybele for the destruction of dis- 
obedient vermin. In a Christian conjuration the 
Mother of God would have been substituted for 
the mother of the gods, whom the Greeks revered 
as the personification of all-creating and all-sus- 
taining nature. The resemblance of this formula, 
which the Greeks may have borrowed with the 
worship of Cybele from the Phrygians, to the 
Yankee's letter of advice is peculiarly interesting. 
In the ancient conjuration the harmful or 
undesirable animals were commanded to go to a 
certain locality, set apart for them, and this 
injunction was accompanied with dire threats in 

134 The Criminal Prosecution and 

case of disobedience; the milder epistolary form 
of the present day is more advisory and persua- 
sive and offers them inducements to migrate and 
to take up their abode elsewhere. Sometimes 
this kind counsel is given verbally, as, for 
example, in Thuringia, where it is customary to 
get rid of cabbage-worms by going into the 
garden, requesting them to depart, and call- 
ing out: "In yonder village is church-ale 
(Kirmes)" ; thus implying that they will find 
better entertainment at this festival. (Witzschel : 
Sagen, Sitten und Gebrduche aus Thiiringen. 
Wien, 1878, p. 217.) The willingness of peasant 
communities to ward off evil from themselves at 
the expense of their neighbours is a survival of 
the primitive ethics, which recognizes only the 
rights of the family or tribe and treats all aliens 
as foes. It is the same feeling that causes the 
inhabitants of the Alps to erect so-called weather- 
crosses (Wetterkreuze) for the purpose of avert- 
ing thunder-storms and hailstones from them- 
selves by diverting them into an adjacent valley. 
This method of protection is based upon the 
theory that tempests, hurricanes, and all violent 
commotions of nature are the work of demons or 
witches, who avoid the symbol of Christ's death 
and the world's redemption and direct their fury 
elsewhere. A like egotism is expressed in the 
inscription on many houses of peasants entreat- 
ing St. Florian to preserve their habitation from 
flames and to set fire to others, as though the 

Capital Punishment of Animals 135 

holy man must indulge his incendiary passion by 

pouring out upon some human abode the blazing 

vessel, which he is represented as bearing in his 

hand. The inscription is the same as that with 

which Reynard the Fox adorned his castle Male- 

partus, and which might be translated : 

" Saint Florian, thou martyr blessed, 
Protect this house and burn the rest." 

Not only were insects, reptiles and small 
mammals, such as rats and mice, legally pro- 
secuted and formally excommunicated, but 
judicial penalties, including capital punishment, 
were also inflicted upon larger quadrupeds. In 
the Report and Researches on this subject, pub- 
lished by Berriat-Saint-Prix in the Memoirs of 
the Royal Society of Antiquaries of France 
(Paris, 1829, Tome VIII. pp. 403-50), numerous 
extracts from the original records of such pro- 
ceedings are given, and also a list of the kinds 
of animals thus tried and condemned, extending 
from the beginning of the twelfth to the middle 
of the eighteenth century, and comprising in all 
ninety-three cases. This list has been enlarged 
by D'Addosio so as to cover the period from 
824 to 1845, and to include one hundred and 
forty-four prosecutions resulting in the execu- 
tion or excommunication of the accused, but 
even this record is by no means complete. (Vide 
Appendix F for a still fuller list.) 

The culprits are a miscellaneous crew, consist- 
ing chiefly of caterpillars, flies, locusts, leeches, 

136 The Criminal Prosecution and 

snails, slugs, worms, weevils, rats, mice, moles, 
turtle-doves, pigs, bulls, cows, cocks, dogs, 
asses, mules, mares and goats. Only those cases 
are reported in which the accused were found 
guilty; of these prosecutions, according to the 
above-mentioned registers, two belong to the 
ninth century, one to the eleventh, three to the 
twelfth, two to the thirteenth, six to the four- 
teenth, thirty-four to the fifteenth, forty-five to 
the sixteenth, forty-three to the seventeenth, 
seven to the eighteenth and one to the nineteenth 
century. To this list might be added other cases, 
such as the prosecution and malediction of 
noxious insects at Glurns in the Tyrol in 15 19, at 
Als in Jutland in 171 1, at Bouranton in 1733, at 
Lyo in Denmark in 1805-6, and at Pozega in 
Slavonia in 1866. In the latter case one of the 
largest of the locusts was seized and tried and 
then put to death by being thrown into the water 
with anathemas on the whole species. A few 
years ago swarms of locusts devastated the 
region near Kallipolis in Turkey, and a petition 
was sent by the Christian population to the monks 
of Mount Athos begging them to bear in solemn 
procession through the fields the girdle of St. 
Basilius, in order to expel the insects. This 
request was granted, and as the locusts gradually 
disappeared, because there was little or nothing 
left for them to eat, the orthodox of the Greek 
Church from the bishop to the humblest laymen 
firmly believed or at least maintained that a 

Capital Punishment of Animals 137 

miracle had been wrought. Pious Moham- 
medans exorcise and ostracize locusts and other 
harmful insects by reading the Koran aloud in 
the ravaged fields, as was recently done at 
Denislue in Asia Minor with satisfactory results. 
Also as late as 1864 at Pleternica in Slavonia, a 
pig was tried and executed for having malici- 
ously bitten off the ears of a female infant aged 
one year. The flesh of the condemned animal 
was cut in pieces and thrown to the dogs, and 
the head of the family, in which the pig lived, as 
is the custom of pigs among the peasants of that 
country, was put under bonds to provide a dowry 
for the mutilated child, so that the loss of her 
ears might not prove to be an insuperable 
obstacle to her marriage. (Amira, p. 578.) It 
would be incorrect to infer from the tables just 
referred to that no judicial punishment of animals 
occurred in the tenth century or that the fifteenth, 
sixteenth, and seventeenth centuries were peculi- 
arly addicted to such practices. It is well known 
that during some of the darkest periods of the 
Middle Ages and even in later times the regis- 
ters of the courts were very imperfectly kept, and 
in many instances the archives have been entirely 
destroyed. It is highly probable, therefore, that 
the cases of capital prosecution and conviction of 
animals, which have been collected and printed 
by Berriat-Saint-Prix and others, however 
thorough their investigations may have been, 
constitute only a very small percentage of those 
which actually took place. 

138 The Criminal Prosecution and 

Beasts were often condemned to be burned 
alive ; and strangely enough, it was in the latter 
half of the seventeenth century, an age of com- 
parative enlightenment, that this cruel penalty 
seems to have been most frequently inflicted. 
Occasionally a merciful judge adhered to the 
letter of the law and curbed its barbarous spirit 
by sentencing the culprit to be slightly singed 
and then to be strangled before being committed 
to the flames. Sometimes brutes were doomed 
to be buried alive. Thus we have the receipt 
of " Ph61ippart, sergeant of high justice of the 
city of Amiens," for the sum of sixteen soldi, 
in payment for services rendered in March 1463, 
in " having buried in the earth two pigs, which 
had torn and eaten with their teeth a little child 
in the faubourg of Amiens, who for this cause 
passed from life to death (etoit alle de vie a 
trepas)." In 1557, on the 6th of December, a 
pig in the Commune of Saint-Quentin was con- 
demned to be "buried all alive" {enfoui tout 
vif), "for having devoured a little child in 
I'hostel de la Couronne." Again, a century 
earlier, in 1456, two pigs were subjected to this 
punishment, " on the vigil of the Holy Virgin," 
at Oppenheim on the Rhine, for having killed a 
child. More than three centuries later the same 
means were employed for curing murrain, which 
in the summer of 1796 had broken out at Beut- 
elsbach in Wiirtemberg and carried off many 
head of cattle. By the advice of a French 
veterinary doctor, who was quartered there with 

Capital Punishment of Animals 139 

the army of General Moreau, the town bull was 
buried alive at the crossroads in the presence of 
several hundred persons. We are not informed 
whether this sacrifice proved to be a sufficiently 
"powerful medicine" to stay the epizootic 
plague; the noteworthy fact is that the super- 
stitious rite was prescribed and performed, not 
by an Indian magician or an African sorcerer, 
but by an official of the French republic. 

Animals are said to have been even put to the 
rack in order to extort confession. It is not to 
be supposed that, in such cases, the judge had 
the slightest expectation that any confession 
would be made; he wished merely to observe 
all forms prescribed by the law, and to set in 
motion the whole machinery of justice before 
pronouncing judgment. The statement of a 
French writer, Arthur Mangin (L'Homme et la 
Bete. Paris, 1872, p. 344), that " the cries which 
they uttered under torture were received as con- 
fessions of guilt," is absurd. No such notion was 
ever entertained by their tormentor. " The ques- 
tion," which under the circumstances would seem 
to be only a wanton and superfluous act of 
cruelty, was nevertheless an important element in 
determining the final decision, since the sentence 
of death could be commuted into banishment, 
whipping, incarceration or some milder form of 
punishment, provided the criminal had not con- 
fessed his guilt under torture. The use of the 
rack might be, therefore, a merciful means of 
escaping the gallows. Appeals were sometimes 

140 The Criminal Prosecution and 

made to higher tribunals and the judgments of 
the lower courts annulled or modified. In one 
instance a sow and a she-ass were condemned to 
be hanged; on appeal, and after a new trial, 
they were sentenced to be simply knocked on 
the head. Occasionally an appeal led to the 
acquittal of the accused. 

In 1266, at Fontenay-aux-Roses, near Paris, 
a pig convicted of having eaten a child was 
publicly burned by order of the monks of Sainte 
Genevieve. In 1386, the tribunal of Falaise 
sentenced a sow to be mangled and maimed in 
the head and forelegs, and then to be hanged, 
for having torn the face and arms of a child and 
thus caused its death. Here we have a strict 
application of the lex talionis, the primitive re- 
tributive principle of taking an eye for an eye 
and a tooth for a tooth. As if to make the 
travesty of justice complete, the sow was dressed 
in man's clothes and executed on the public 
square near the city-hall at an expense to the 
state of ten sous and ten deniers, besides a pair 
of gloves to the hangman. The executioner was 
provided with new gloves in order that he might 
come from the discharge of his duty, meta- 
phorically at least, with clean hands, thus indi- 
cating that, as a minister of justice, he incurred 
no guilt in shedding blood. He was no common 
pig-killer, but a public functionary, a " master 
of high works " (maitre des hautes ceuvres), as 
he was officially styled. (Vide Appendix G.) 

We may add that the west wall of the south 

Capital Punishment of Animals 141 

branch of the transept in the Church of the 
Holy Trinity (Sainte-Trinite) at Falaise in 
Normandy was formerly adorned with a fresco- 
painting of this execution, which is mentioned 
in Statistique de Falaise (1827, t. I. 83), and 
more fully described by I'Abb^ Pierre-Gilles 
Langevin, in his Recherches Historiques sur 
Falaise (1814, p. 146). In a Supplement (p. 12) 
to this work, published several years later, the 
Abbe states that, about the year 1820, the entire 
church, including the fresco, was whitewashed, 
so that the picture has since then been invisible, 
and, so far as can be ascertained, no engraving 
or other copy of it has ever been made. Un- 
fortunately, too, as the same writer informs us, 
la chdsse de la banniere (banner-holder) was 
fastened to the wall of the church on this very 
spot, thus covering and permanently destroying 
at least a portion of the painting. 

In 1394, a pig was found guilty of "having 
killed and murdered a child in the parish of 
Roumaygne, in the county of Mortaing, for 
which deed the said pig was condemned to be 
haled and hanged by Jehan Petit, lieutenant of 
the bailiff." The work was really done by the 
hangman (pendart), Jehan Micton, who received 
for his services the sum of " fifty souls tournois." 
(Vide Appendix H.) In another case the deputy 
bailiff of Mantes and MeuUant presented a bill, 
dated March 15, 1403. which contained the 
following items of expense incurred for the in- 

142 The Criminal Prosecution and 

carceratioa and execution of an infanticide 
sow : 

" Cost of keeping her in jail, six sols parisis. 
" Item, to the master of high works, who came 
from Paris to Meullant to perform the said 
execution by comand and authority of the 
said bailiff, our master, and of the procur- 
ator of the king, fifty-four sols parisis. 
" Item, for a carriage to take her to justice, six 

sols parisis. 
" Item, for cords to bind and hale her, two 

sols eight deniers parisis. 
" Item, for gloves, two deniers parisis." 
This account, which amounted in all to sixty- 
nine sols eight deniers parisis, was examined 
and approved by the auditor of the court, De 
Baudemont, who affixed to it his own seal with 
signature and paraph and " in further confirm- 
ation and approbation thereof caused it to be 
sealed with the seal of the Chatellany of Meul- 
lant, on the 15th day of March in the year 
1403." (See Appendix I.) In the following 
year a pig was executed at Rouvres for the same 

Brutes and human criminals were confined in 
the same prison and subjected to the same treat- 
ment. Thus " Toustain Pincheon, keeper of 
the prisons of our lord the king in the town of 
Pont de Larche," acknowledges the receipt, 
" through the hand of the honourable and wise 
man, Jehan Monnet, sheriff (vicomte) of the said 

Capital Punishment of Animals 143 

town, of nineteen sous six deniers tournois for 
having found the king's bread for the prisoners 
detained, by reason of crime, in the said prison." 
The jailer gives the names of the persons in 
custody, and concludes the list with " Item, one 
pig, conducted into the said prison and kept 
there from the 24th of June, 1408, inclusive, till 
the 17th of the folowing July," when it was 
hanged "for the crime of having murdered 
and killed a little child " (pource que icellui 
pore avoit muldry et tue ung pettit enfant). For 
the pig's board the jailer charged two deniers 
tournois a day, the same as for boarding 
a man, thus placing the porker, even in respect 
to its maintenance, on a footing of perfect 
equality with the human prisoners. He also 
puts into the account " ten deniers tournois for 
a rope, found and furnished for the purpose of 
tying the said pig that it might not escape." 
The correctness of the charges is certified to by 
"Jean Gaulvant, sworn tabellion of our lord 
the king in the viscounty of Pont de Larche." 
(Vide Appendix J.) Again in 1474, the official 
of the Bishop of Lausanne sentenced a pig to 
be hanged "until death ensueth," for having 
devoured an infant in its cradle in the vicinity 
of Oron, and to remain suspended from the gal- 
lows for a certain length of time as a warning to 
wrong-doers. It is also expressly stated that, 
in 1585, the body of a pig, which had been 
executed for the murder of a child at Saint- 

144 The Criminal Prosecution and 

Omer, at the hostelry of Mortier d'Or, was left 
hanging " for a long space " on a gibbet in a 
field near the highway. (Derheims : Histoire 
de Saint-Omer, p. 327.) A little later a similar 
spectacle met the eyes of Guy Pape, as he was 
going to Chalons-sur-Marne in Champagne, to 
pay homage to King Henry IV. In his own 
words : dum ibam ad civitatetn Cathalani in 
Campania ad Regem tunc ibi existentem, vidi 
quemdam porcum, in furcis suspensum, qui dice- 
batur occidisse quemdam puerum. (Quaestio 
CCXXXVIII : De poena bruti delinquentis. 
Lugduni, MDCX.) 

On the 5th of September, 1379, as two herds 
of swine, one belonging to the commune and the 
other to the priory of Saint-Marcel-le-Jeussey, 
were feeding together near that town, three sows 
of the communal herd, excited and enraged by 
the squealing of one of the porklings, rushed 
upon Perrinot Muet, the son of the swine- 
keeper, and before his father could come to his 
rescue, threw him to the ground and so severely 
injured him that he died soon afterwards. The 
three sows, after due process of law, were con- 
demned to death ; and as both the herds had 
hastened to the scene of the murder and by their 
cries and aggressive actions showed that they 
approved of the assault, and were ready and even 
eager to become participes criminis, they were 
arrested as accomplices and sentenced by the 
court to suffer the same penalty. But the prior, 

Capital Punishment of Animals 145 

Friar Humbert de Poutiers, not willing to en- 
dure the loss of his swine, sent an humble 
petition to Philip the Bold, then Duke of Bur- 
gundy, praying that both the herds, with the 
exception of the three sows actually guilty of 
the murder, might receive a full and free pardon. 
The duke lent a gracious ear to this supplication 
and ordered that the punishment should be re- 
mitted and the swine released. (Vide Appendix 

A peculiar custom is referred to in the proces 
verbal of the prosecution of a porker for infanti- 
cide, dated May 20, 1572. The murder was 
committed within the jurisdiction of the monas- 
tery of Moyen-Montier, where the case was 
tried and the accused sentenced to be " hanged 
and strangled on a gibbet." The prisoner was 
then bound with a cord and conducted to a 
cross near the cemetery, where it was formally 
given over to an executioner from Nancy. 
"From time immemorial," we are told, "the 
justiciary of the Lord Abbot of Moyen-Montier 
has been accustomed to consign to the provost 
of Saint-Diez, near this cross, condemned crim- 
inals, wholly naked, that they may be executed ; 
but inasmuch as this pig is a brute beast, he 
has delivered the same bound with a cord, with- 
out prejudicing or in any wise impairing the 
right of the Lord Abbot to deliver condemned 
criminals wholly naked." The pig must not 
wear a rope unless the right to do without it be 

146 The Criminal Prosecution and 

expressly reserved, lest some human culprit, 
under similar circumstances, should claim to 
be entitled to raiment. 

" 'Twill be recorded for a precedent ; 
And many an error, by the same example 
Will rush into the state : it cannot be." 

In the case of a mule condemned to be burned 
alive together with a man guilty of buggery, at 
Montpellier, in 1565, as the quadruped was 
vicious and inclined to kick {vitiosus et calcitro- 
sus), the executioner cut off its feet before con- 
signing it to the flames. This mutilation was 
an arbitrary and extra-judicial act, dictated solely 
by considerations of personal convenience. 
Hangmen often indulged in capricious and 
supererogatory cruelty in the exercise of their 
patibulary functions, and mediaeval as well as 
later writers on criminal jurisprudence repeatedly 
complain of this evil and call for reform. Thus 
Damhouder, in his Rerum Criminalium Praxis 
{cap. de carnifice, p. 234), urges magistrates to 
be more careful in selecting persons for this im- 
portant office, and not to choose evil-doers, 
" assiduous gamblers, public whoremongers, 
malicious back-biters, impious blasphemers, as- 
sassins, thieves, murderers, robbers, and other 
violators of the law as vindicators of justice. 
Indeed, these hardened wretches sometimes took 
the law into their own hands. For example, on 
the 9th of June, 1576, at Schweinfurt in Fran- 
conia, a sow, which had bitten off the ear and 

Capital Punishment of Animals 147 

torn the hand of a carpenter's child, was given 
into custody, whereupon the hangman, without 
legal authority, took it to the gallows-green 
(Schindrasen) and there " hanged it publicly 
to the disgrace and detriment of the city." For 
this impudent usurpation of judiciary powers 
Jack Ketch was forced to flee and never dared 
return. Hence arose the proverbial phrase 
Schweinfurter Sauhenker (Schweinfurt sow- 
hangman), used to characterize a low and lawless 
ruffian and vile fellow of the baser sort. It was 
not the mere killing of the sow, but the execu- 
tion without a judicial decision, the insult and 
contempt of the magistracy and the judicatory 
by arrogating their functions, that excited the 
public wrath and official indignation. 

Buggery {offensa cujus nominatio crimen est, 
as it is euphemistically designated in legal docu- 
ments) was uniformly punished by putting to 
death both parties implicated, and usually by 
burning them alive. The beast, too, is punished 
and both are burned (punitur etiam fecus et 
ambo comburuntur), says Guillielmus Benedic- 
tinus, a writer on law, who lived about the end 
of the fourteenth century. Thus, in 1546, a 
man and a cow were hanged and then burned 
by order of the parliament of Paris, the supreme 
court of France. In 1466, the same tribunal 
condemned a man and a sow to be burned at 
Corbeil. Occasionally interment was substituted 
for incremation. Thus in 1609, at Niederrad, 

148 The Criminal Prosecution and 

a man and a mare were executed and their bodies 
buried in the same carrion-pit. On the 12th 
of September, 1606, the mayor of Loens de 
Chartres, on complaint of the dean, canons, and 
chapter of the cathedral of Chartres, condemned 
a man named Guillaume Guyart to be " hanged 
and strangled on a gibbet in reparation and 
punishment of sodomy, whereof the said Guyart 
is declared accused, attainted and convicted." 
A bitch, his accomplice, was sentenced to be 
knocked on the head (assommee) by the execu- 
tioner of high justice and " the dead bodies of 
both to be burned and reduced to ashes." It 
is furthermore added that if the said Guyart, 
who seems to have contumaciously given leg- 
bail, cannot be seized and apprehended in 
person, the sentence shall, in his case, be 
executed in effigy by attaching his likeness in 
painting to the gibbet. It was also decreed that 
all the property of the absconder should be con- 
fiscated and the sum of one hundred and fifty 
livres be adjudged to the plaintiffs, out of which 
the costs of the trial were to be defrayed. (Vide 
Appendix L.) This disgusting crime appears 
to have been very common ; at least Ayrault in 
his Ordre Judiciaire, published in 1606, states 
that he has many times (muUoties) seen brute 
beasts put to death for this cause. In his Mag- 
nalia Christi Americana (Book VI, (III), 
London, 1702) Cotton Mather records that "on 
June 6, 1662, at New Haven, there was a most 

Capital. Punishment of Animals 149 

unparalleled wretch, one Potter by name, about 
sixty years of age, executed for damnable Besti- 
alities." He had been a member of the Church 
for twenty years and was noted for his piety, 
" devout in worship, gifted in prayer, forward 
in edifying discourse among the religious, and 
zealous in reforming the sins of other people." 
Yet this monster, who is described as possessed 
by an unclean devil, "lived in most infandous 
Buggeries for no less than fifty years together, 
and now at the gallows there were killed before 
his eyes a cow, two heifers, three sheep and two 
sows, with all of which he had committed his 
brutalities. His wife had seen him confound- 
ing himself with a bitch ten years before ; and 
he then excused himself as well as he could, 
but conjured her to keep it secret." He after- 
wards hanged the bitch, probably as a sort of 
vicarious atonement. According to this account 
he must have begun to practice sodomy when 
he was ten years of age, a vicious precocity 
which the author would doubtless explain on 
the theory of diabolical possession. In 1681, a 
habitual sodomite, who had been wont to defile 
himself with greyhounds, cows, swine, sheep 
and all manner of beasts, was brought to trial 
together with a mare, at Wiinschelburg in 
Silesia, where both were burned alive. In 1684, 
on the 3rd of May, a bugger was beheaded at 
Ottendorf, and the mare, his partner in crime, 
knocked on the head ; it was expressly enjoined 

150 The Criminal Prosecution and 

that in burning the bodies the man's should lie 
underneath that of the beast. In the following 
year, fourteen days before Christmas, a journey- 
man tailor, "who had committed the unnatural 
deed of carnal lewdness with a mare," was 
burned at Striga together with the mare. 

For the same offence Benjamin Deschauffour 
was condemned. May 25, 1726, to be tied to a 
stake and there burned alive " together with the 
minutes of the trial;" his ashes were strewed to 
the wind and his estates seized and, after the 
deduction of a fine of three thousand livres, con- 
fiscated to the benefit of his Majesty. In the 
case of Jacques Ferron, who was taken in the 
act of coition with a she-ass at Vanvres in 1750, 
and after due process of law, sentenced to death, 
the animal was acquitted on the ground that she 
was the victim of violence and had not partici- 
pated in her master's crime of her own free-will. 
The prior of the convent, who also performed the 
duties of parish priest, and the principal in- 
habitants of the commune of Vanvres signed a 
certificate stating that they had known the said 
she-ass for four years, and that she had always 
shown herself to be virtuous and well-behaved 
both at home and abroad and had never given 
occasion of scandal to any one, and that there- 
fore " they were willing to bear witness that she 
is in word and deed and in all her habits of life 
a most honest creature." This document, given 
at Vanvres on Sept. 19, 1750, and signed by 

Capital Punishment of Animals 151 

" Pintuel Prieur Cur^ " and the other attestors, 
was produced during the trial and exerted a 
decisive influence upon the judgment of the 
court. As a piece of exculpatory evidence it 
may be regarded as unique in the annals of 
criminal prosecutions. 

The Carolina or criminal code of the emperor 
Charles V., promulgated at the diet of Ratisbon 
in 1532, ordained that sodomy in all its forms 
and degrees should be punished with death by 
fire "according to common custom" ("so ein 
Mensch mit einem Viehe, Mann mit Mann, 
Weib mit Weib, Unkeuschheit treibet, die haben 
auch das Leben verwircket, und man soil sie der 
gemeinen Gewohnheit nach mit dem Feuer vom 
Leben zum Tode richten." Art. 116.), but stipu- 
lated that, if for any reason the punishment of 
the sodomite should be mitigated, the same 
measure of mercy should be shown to the beast. 
This principle is reaffirmed by Benedict Carpzov 
in his Pratica Nova Rerum Criminalium (Wit- 
tenberg, 1635), in which he states that " if for 
any cause the sodomite shall be punished only 
with the sword, then the beast participant of 
his crime shall not be burned, but shall be struck 
dead and buried by the knacker or field-master 
(Caviller oder Feldmeister).^' The bugger was 
also bound to compensate the owner for the loss 
of the animal, or, if he left no property, the 
value must be paid out of the public treasury. 
" If the criminal act was not fully consummated, 

152 The Criminal Prosecution and 

then the human offender was publicly scourged 
and banished, and the animal, instead of being 
killed, was put away out of sight in order that 
no one might be scandalized thereby" [Jacobi 
Dopleri, Theatrum Poenarum Suppliciorum et 
Executionum Criminalium, oder Schau-Platz 
derer Leibes-und Lebens-Straffen, etc. Sonders- 
hausen, 1693, II. p. 151.] 

All Christian legislation on this subject is 
simply an application and amplification of the 
Mosaic law as recorded in Exodus xxii. 19 and 
Leviticus xx. 13-16, just as the cruel persecu- 
tions and prosecutions for witchcraft in mediaeval 
and modern times derive their authority and jus- 
tification from the succinct and peremptory com- 
mand : " Thou shalt not suffer a witch to live." 
In the older criminal codes two kinds or degrees 
of sodomy are mentioned, gravius and gravis- 
simum; the former being condemned in the 
thirteenth verse and the latter in the fifteenth 
and sixteenth verses of Leviticus. Dopier tells 
some strange stories of the results of the pecca- 
tum gravissimum ; and the fact that a sober 
writer on jurisprudence could believe and seri- 
ously narrate such absurdities, furnishes a 
curious contribution to the history of human 

It is rather odd that Christian law-givers 
should have adopted a Jewish code against 
sexual intercourse with beasts and then enlarged 
it so as to include the Jews themselves. The 

Capital Punishment of Animals 153 

question was gravely discussed by jurists, 
whether cohabitation of a Christian with a 
Jewess or vice versa constitutes sodomy. Dam- 
houder (Prax. Rer. Crim. c, 96, n. 48) is of the 
opinion that it does, and Nicolaus Boer (Decis., 
•136, n. 5) cites the case of a certain Johannes 
Alardus or Jean Alard, who kept a Jewess in 
his house in Paris and had several children by 
her ; he was convicted of sodomy on account of 
this relation and burned, together with his para- 
mour, " since coition with a Jewess is precisely 
the same as if a man should copulate with a 
dog" (Dopl., Theat., II. p. 157). Damhouder, 
in the work just cited, includes Turks and 
Saracens in the same category, " inasmuch as 
such persons in the eye of the law and our holy 
faith differ in no wise from beasts." 

But to resume the subject of the perpetration 
of felonious homicide by animals, on the loth 
of January, 1457, a sow was convicted of 
" murder flagrantly qommitted on the person of 
Jehan Martin, aged five years, the son of Jehan 
Martin of Savigny," and sentenced to be 
" hanged by the hind feet to a gallows-tree (a 
ung arbre esprone)." Her six sucklings, being 
found stained with blood, were included in the 
indictment as accomplices; but " in lack of any 
positive proof that they had assisted in mangling 
the deceased, they were restored to their owner, 
on condition that he should give bail for their 
appearance, should further evidence be forth- 

154 The Criminal Prosecution and 

coming to prove their complicity in their mother's 
crime." Above three weeks later, on the 2nd 
of February, to wit " on the Friday after the 
feast of Our Lady the Virgin," the sucklings 
were again brought before the court ; and, as 
their owner, Jehan Bailly, openly repudiated 
them and refused to be answerable in any wise 
for their future good conduct, they were de- 
clared, as vacant property, forfeited to the noble 
damsel Katherine de Barnault, Lady of Savigny. 
This case is particularly interesting on account 
of the completeness with which the proces verbal 
has been preserved. (See Appendix M.) 

Sometimes a fine was imposed upon the owner 
of the offending animal, as was the case with 
Jehan Delalande and his wife, who were con- 
demned, on the i8th of April, 1499, by 
the bailiff of the Abbey of Josaphat near Char- 
tres, to pay a fine of eighteen francs and to be 
confined in prison until this sum should be paid, 
" on account of the murder of a child named 
Gilon, aged five and a half years or thereabouts, 
perpetrated by a porker, aged three months or 
thereabouts." The pig was condemned to be 
" hanged and executed by justice." The owners 
were punished because they were supposed to 
have been culpably negligent of the child, who 
had been confided to their care and keeping, and 
not because they had, in the eye of the law, any 
proprietary responsibility for the infanticidal 
animal. The mulct implied remissness on their 

Capital Punishment of Animals 155 

part as guardians or foster-parents of the infant. 
In general, as we have seen, the owner of the 
blood-guilty beast was considered wholly blame- 
less and sometimes even remunerated for his 
loss. (Vide Appendix N.) 

According to the laws of the Bogos, a pastoral 
and nominally Christian tribe of Northern Abys- 
sinia, a bull, cow or any other animal which 
kills a man is put to death; the owner of the 
homicidal beast is not held in any wise respons- 
ible for its crime, nevertheless he practically in- 
curs a somewhat heavy penalty by not receiving 
any compensation for the loss of his property. 
This exercise of justice is quite common among 
the tribes of Central Africa. In Montenegro, 
horses, oxen and pigs have been recently tried 
for homicide and put to death, unless the owner 
redeemed them by paying a ransom. 

On the 14th of June, 1494, a young pig 
was arrested for having " strangled and defaced 
a young child in its cradle, the son of Jehan 
Lenfant, a cowherd on the fee-farm of Clermont, 
and of Gillon his wife," and proceeded against 
" as justice and reason would desire and re- 
quire." Several witnesses were examined, who 
testified "on their oath and conscience" that 
" on the morning of Easter Day, as the father 
was guarding cattle and his wife Gillon was 
absent in the village of Dizy, the infant being 
left alone in its cradle, the said pig entered 
during the said time the said house and dis- 

156 The Criminal Prosecution and 

figured and ate the face and neck of tfie said 
child, which, in consequence of the bites and 
defacements inflicted by the said pig, departed 
this life (de ce siecle trepassa)." The sentence 
pronounced by the judge was as follows, " We, 
in detestation and horror of the said crime, and 
to the end that an example may be made and 
justice maintained, have said, judged, sentenced, 
pronounced and appointed, that the said porker, 
now detained as a prisoner and confined in the 
said abbey, shall be by the master of high works 
hanged and strangled on a gibbet of wood near 
and adjoinant to the gallows and high place of 
execution belonging to the said monks, being 
contiguous to their fee-farm of Avin." The 
crime was committed " on the fee-farm of Cler- 
mont-lez-Montcornet, appertaining in all matters 
of high, mean and base justice to the monks of 
the order of Premonstrants," and the prosecu- 
tion was conducted by " Jehan Levoisier, licen- 
ciate in law, the grand mayor of the church 
and monastery of St. Martin de Laon of the 
order of Premonstrants and the aldermen of the 
same place." The plaintiffs were the friars, who 
preferred charges against the pig and procured 
the evidence necessary to its conviction. (Vide 
Appendix O.) 

In 1394, a pig was hanged at Mortaign for 
having sacrilegiously eaten a consecrated wafer ; 
and in a case of infanticide, it is expressly stated 
in the plaintiff's declaration that the pig killed 

Capital Punishment of Animals 157 

the child and ate of its flesh, " although it was 
Friday," and this violation of the jejunium 
sextae, prescribed by the Church, was urged by 
the prosecuting attorney and accepted by the 
court as a serious aggravation of the porker's 

Nothing would be easier than to multiply ex- 
amples of this kind. Infanticidal swine were 
hanged in 1419 at Labergement-le-Duc, in 1420 
at Brochon, in 1435 at Troch^res, and in 1490 
at Abbeville; the last-mentioned execution took 
place "under the auspices of the aldermanity 
and with the tolling of the bells." It was evi- 
dently regarded as a very solemn affair. The 
records of mediaeval courts, the chronicles of 
mediaeval cloisters, and the archives of mediaeval 
cities, especially such as were under episcopal 
sovereignty and governed by ecclesiastical law, 
are full of such cases. The capital punishment 
of a dumb animal for its crimes seems to us so 
irrational and absurd, that we can hardly believe 
that sane and sober men were ever guilty of such 
folly; yet the idea was quite familiar to our 
ancestors even in Shakespeare's day, in the 
brilliant Elizabethan age of English literature, 
as is evident from a passage in Gratiano's invec- 
tive against Shylock : 

"thy currish spirit 
Govern'd a wolf, who, hang'd for human slaughter, 
Even from the gallows did his fell soul fleet. 
And, whilst thou layst in thy unhallow'd dam, 
Infus'd itself in thee ; for thy desires 
Are wolfish, bloody, starv'd, and ravenous." 

158 The Criminal Prosecution and 

That such cases usually came under the juris- 
diction of monasteries and so-called spiritualities 
and were tried by their peculiarly organized 
tribunals, will not seem strange, when we re- 
member that these religious establishments were 
great landed proprietors and at one time owned 
nearly one-third of all real estate in France. 
The frequency with which pigs were brought to 
trial and adjudged to death, was owing, in a 
great measure, to the freedom with which they 
were permitted to run about the streets and to 
their immense number. The fact that they were 
under the special protection of St. Anthony of 
Padua conferred upon them a certain immunity, 
so that they became a serious nuisance, not only 
endangering the lives of children, but also 
generating and disseminating diseases. It is 
recorded that in 1131, as the Crown Prince 
Philippe, son of Louis the Gross, was riding 
through one of the principal streets of Paris, 
a boar, belonging to an abbot, ran violently 
between the legs of his horse, so that the prince 
fell to the ground and was killed. In some cities, 
like Grenoble in the sixteenth century, the 
authorities treated them very much as we do 
mad dogs, empowering the carnifex to seize and 
slay them whenever found at large. On Nov. 
20, 1664, the municipality of Naples passed an 
ordinance that the pigs, which frequented the 
streets and piazzas to the detriment and danger 
of the inhabitants, should be removed from the 
city to a wood or other uninhabited place or be 

Capital Punishment of Animals 159 

slaughtered within twelve days on pain of the 
penalties already prescribed and threatened, 
probably in the order issued on Nov. 3, of the 
same year. It would seem, however, that these 
ordinances did not produce the desired effect, or 
soon fell into abeyance, since another was pro- 
mulgated four years later, on Nov. 29, 1668, 
expelling the pigs from the city and calling at- 
tention to the fact that they corrupted the atmo- 
sphere and thus imperiled the public health. 
Sanitary considerations and salutary measures 
of this kind were by no means common in the 
Middle Ages, but were a gradual outgrowth of 
the spirit of the Renaissance. It was with the 
revival of letters that men began to love clean- 
liness and to appreciate its hygienic value as 
well as its aesthetic beauty. Little heed was 
paid to such things in the " good old times " of 
earlier date, when the test of holiness was the 
number of years a person went unwashed, and 
the growth of the soul in sanctity was estimated 
by the thickness of the layers of filth on the 
body, as the age of the earth is determined by 
the strata which compose its crust. 

The freedom of the city almost universally 
enjoyed by mediseval swine is still maintained 
by their descendants in many towns of Southern 
Italy and Sicily, where they ramble at will 
through the streets or assemble in council before 
the palace of the prefect (cf. D'Addosio, Bestie 
Delinquenti, pp. 23-5). 

i6o The Criminal Prosecution and 

In the latter half of the sixteenth century the 
tribunals began to take preventive measures 
against the public nuisance by holding the in- 
habitants responsible for the injuries done to 
individuals by swine running at large and by 
threatening with corporal as well as pecuniary 
punishment all persons who left " such beasts 
without a good and sure guard." Thus it is 
recorded that on the 27th of March, 1567, "a 
sow with a black snout," "for the cruelty and 
ferocity " shown in murdering a little child 
four months old, having " eaten and devoured 
the head, the left hand and the part above 
the right breast of the said infant," was con- 
demned to be " exterminated to death, and to 
this end to be hanged by the executioner of high 
justice on a tree within the metes and bounds 
of the said judicature on the highway from Saint- 
Firmin to Senlis." The court of the judicatory 
of Senlis, which pronounced this sentence on 
complaint of the procurator of the seigniory of 
Saint-Nicolas, also forbade all the inhabitants 
and subjects of the said seignioralty to permit the 
like beasts to go unguarded on pain of an arbi- 
trary fine and of corporal chastisement in default 
of payment. (Vide Appendix P.) 

But although pigs appear to have been the 
principal culprits, especially as regard infanti- 
cide, other quadrupeds were frequently called 
to answer for similar crimes. Thus, in 13 14, a 
bull belonging to a farmer in the village of 

Capital Punishment of Animals i6i 

Moisy, escaped into the highway, where it at- 
tacked a man and injured him so severely that 
he died a few hours afterwards. The ferocious 
animal was seized and imprisoned by the officers 
of Charles, Count of Valois, and after being tried 
and convicted was sentenced to be hanged. This 
judgment of the court was confirmed by the 
Parliament of Paris and the execution took place 
at Moisy-le-Temple on the common gallows. 
An appeal based upon the incompetency of the 
court was then made by the Procurator of the 
Order of the Hospital of the Ville de Moisy to 
the Parliament of La Chandeleur, which decided 
that the bull had met with its deserts and been 
justly put to death, but that the Count of Valois 
had no jurisdiction on the territory of Moisy, 
and his officials no power to institute proceed- 
ings in this case. The sentence was right in 
equity, but judicially and technically wrong, and 
could not therefore serve as a precedent. 

There is also extant an order issued by the 
magistracy of Gisors in 1405, commanding pay- 
ment to be made to the carpenter who had 
erected the scaffold on which an ox had been 
executed " for its demerits." Again on the 
i6th of May, 1499, the judicial authorities of 
the Cistercian Abbey of Beaupr^ near Beauvais 
condemned a red bull to be "executed until 
death inclusively," for having "killed with 
furiosity a lad of fourteen or fifteen years of age, 
named Lucas Dupont," who was employed in 
tending the horned cattle of the farmer Jean 

1 62 The Criminal Prosecution and 

Boullet. (Vide Appendix Q.) In 1389, the 
Carthusians of Dijon caused a horse to be con- 
demned to death for homicide; and as late as 
1697 a mare was burned by the decision and 
decree of the Parliament of Aix, which, it must 
be remembered, was not a legislative body, but 
a supreme court of judicature, thus differing in 
its functions from the States General, the only 
law-making and representative assembly in 
France, that may be said to have corresponded 
in the slightest degree to the modern conception 
of a parliament. 

In 1474, the magistrates of Bale sentenced a 
cock to be burned at the stake " for the heinous 
and unnatural crime of laying an egg." The 
auto da fe was held on a height near the city 
called the Kohlenberg, with as great solemnity 
as would have been observed in consigning a 
heretic to the flames, and was witnessed by an 
immense crowd of townsmen and peasants. 
The statement made by Gross in his Kurze 
Busier Chronik, that the executioner on cutting 
open the cock found three more eggs in him, is 
of course absurd; we have to do in this case 
not with a freak of nature, but with the freak of 
an excited imagination tainted with superstition. 
Other instances of this kind have been recorded, 
one in the Swiss Prattigau as late as 1730, al- 
though in many cases the execution of the galli- 
naceous malefactor was more summary and less 
ceremonious than at Bale. 

The oeuf coquatri was supposed to be the pro- 

Capital Punishment of Animals 163 

duct of a very old cock and to furnish the most 
active ingredient of witch ointment. When 
hatched by a serpent or a toad, or by the heat 
of the sun it brought forth a cocliatrice or basilisii, 
which would hide in the roof of the house and 
with its baneful breath and " death-darting eye " 
destroy all the inmates. Many naturalists be- 
lieved this fable as late as the eighteenth century, 
and in 1710 the French savant Lapeyronie 
deemed this absurd notion worthy of serious 
refutation, and read a paper, entitled " Obser- 
vation sur les petits oeufs de poule sans jaune, 
que Ton appelle vulgairement oeufs de Coq," 
before the Academy of Sciences in order to prove 
that cocks never lay and that the small and yolk- 
less eggs attributed to them owe their peculiar 
shape and condition to a disease of the hen re- 
sulting in a hydropic malformation of the ovi- 
duct. A farmer brought him several specimens 
of this sort, somewhat larger than a pigeon's 
egg, and assured him that they had been laid 
by a cock in his own barnyard. On opening 
one of them, M. Lapeyronie was surprised to 
find only a very slight trace of the yolk resem- 
bling " a small serpent coiled." He now began 
to suspect that the cock might be an hermaphro- 
dite, but on killing and dissecting it discovered 
nothing in support of this theory, the internal 
organs being all perfectly healthy and normal. 
But although the unfortunate chanticleer had 
fallen a victim to the scientific investigation of 

164 The Criminal Prosecution and 

a popular delusion, the eggs in question con- 
tinued to be produced, until the farmer by care- 
fully watching the fowls detected the hen that 
laid them. The dissection showed that the 
pressure of a bladder of serous fluid against the 
oviduct had so contracted it, that the egg in 
passing had the yolk squeezed out of it, leaving 
merely a yellowish discoloration that looked like 
a worm. Another peculiarity of this hen was 
that she crowed like "a hoarse cock" (un coq 
enroue), only more violently; a phenomenon 
also a source of terror to the superstitious, but 
ascribed by M. Lapeyronie to the same morbid 
state of the oviduct and the consequent pain 
caused by the passage of the egg (Memoires de 
I'Academie de Sciences. Paris, 1710, pp. 553- 

A Greek physiologus of the twelfth century, 
written in verse, calls the animal hatched from 
the egg of an old cock eitreLvapia, a name which 
would imply some sort of winged creature. It 
was "sighted like the basilisk," and endowed 
also in other respects with the same fatal qualities. 

In the case of a valuable animal, such as an 
ox or a horse, the severity of retaliatory justice 
was often tempered by economical considera- 
tions and the culprit confiscated, but not capi- 
tally punished. Thus as early as the twelfth 
century it is expressly stated that "it is the law 
and custom in Burgundy that if an ox or a 
horse commit one or several homicides, it shall 

Capital Punishment of Animals 165 

not be condemned to death, but shall be taken 
by the Seignior within whose jurisdiction the 
deed was perpetrated or by his servitors and be 
confiscated to him and shall be sold and appro- 
priated to the profit of the said Seignior; but 
if other beasts or Jews do it, they shall be 
hanged by the hind feet " (Coustumes et Stilles 
de Bourgoigne, § 197 in Giraud : Essai sur 
I'Histoire du Droit Francais, II. p. 302; quoted 
by Amira). It was a cruel irony of the law 
that conferred upon pigs and Jews a perfect 
equality of rights by sending them both to the 

Animals were put on a par with old crones in 
bearing their full share of persecution during 
the witchcraft delusion. Pigs suffered most in 
this respect, since they were assumed to be 
peculiarly attractive to devils, and therefore par- 
ticularly liable to diabolical possession, as is 
evident from the legion that went out of the 
lunatic and were permitted, at their own request, 
to enter into the Gadarene herd of swine. But 
Beelzebub did not disdain to become incarnate 
in all sorts of creatures, such as cats, dogs of 
high and low degree, wolves, night-birds and 
indeed in any beast, especially if it chanced to 
be black. Goats, it is well known, were not a 
too stinking habitation for him, and even to 
dwell in skunks he did not despise. The per- 
petual smell of burning sulphur in his subter- 
ranean abode may render him proof against any 

1 66 The Criminal Prosecution and 

less suffocating form of stench. The Bible 
represents Satan as going about as a roaring 
lion ; and according to the highest ecclesiastical 
authorities he has appeared visibly as a raven, 
a porcupine, a toad and a gnat. Indeed, there 
is hardly a living creature in which he has not 
deigned to disport himself from a blue-bottle 
to a bishop, to say nothing of his "appearing 
invisibly at times" (aliquando invisibiliter ap- 
parens), if we may believe what the learned 
polyhistor Tritheim tells of his apparitions. As 
all animals were considered embodiments of 
devils, it was perfectly logical and consistent 
that the Prince of Darkness should reveal him- 
self to mortal ken as a mongrel epitome of many 
beasts — snake, cat, dog, pig, ape, buck and 
horse each contributing some characteristic part 
to his incarnation. 

It was during the latter half of the seventeenth 
century, when, as we have seen, criminal pro- 
secutions of animals were still quite frequent 
and the penalties inflicted extremely cruel, that 
Racine caricatured them in Les Plaideurs, where 
a dog is tried for stealing and eating a capon. 
Dandin solemnly takes his seat as judge, and 
declares his determination to "close his eyes 
to bribes and his ears to brigue." Petit Jean 
prosecutes and L'Intime appears for the defence. 
Both address the court in florid and high-flown 
rhetoric and display rare erudition in quoting 
Aristotle, Pausanias and other ancient as well 

Capital Punishment of Animals 167 

as modern authorities. The accused is con- 
demned to the galleys. Thereupon the counsel 
for the defendant brings in a litter of puppies, 
pauvres enfants qu'on veut rendre orphelins, 
and appeals to the compassion and implores the 
clemency of the judge. Dandin's feelings are 
touched, for he, too, is a father; as a public 
officer, also, he is moved by the economical con- 
sideration of the expense to the state of keeping 
the offspring of the culprit in a foundling hos- 
pital, in case they should be deprived of paternal 
support. To the contemporaries of Racine the 
representation of a scene like this had a signifi- 
cance, which we fail to appreciate. It strikes us 
as simply farcical and not very funny; to them 
it was a mirror reflecting a characteristic feature 
of the time and ridiculing a grave judicial abuse, 
as Cervantes, a century earlier, burlesqued the 
institution of chivalry in the adventures of Don 
Quixote. (See Appendix R.) 

Lex talionis is the oldest kind of law and the 
most deeply rooted in human nature. To the 
primitive man and the savage, tit for tat is an 
ethical axiom, which it would be thought im- 
moral as well as cowardly not to put into prac- 
tice. No principle is held more firmly or acted 
upon more universally than that of literal and 
exact retributions in man's dealings with his 
fellows — the iron rule of doing unto others the 
wrongs which others have done unto you. 
Hebrew legislation demanded " life for life, eye 
for eye, tooth for tooth, hand for hand, foot for 

1 68 The Criminal Prosecution and 

foot, burning for burning, wound for wound, 
stripe for stripe." An old Anglo-Saxon law 
made this retaliatory principle of memhrum pro 
membro the penalty of all crimes of personal 
violence, including rape; even a lascivious eye 
was to be plucked out, in accordance with the 
doctrine that " whosoever looketh on a woman 
to lust after her hath committed adultery with 
her already in his heart." [" Corruptor puniatur 
in eo in quo deliquat : oculos igitur amittat, 
propter aspectum decoris, quo virginem con- 
cupivit ; amittat et testiculos, qui calorem stupri 
induxerunt." Cf. Bracton, 147^; Reeves, 
I. 481.] This was believed to be God's method 
of punishment, smiting with disease or miracul- 
ously destroying the bodily organs, which were 
the instruments of sin. Thus Stengelius (De 
Judiciis Divinis, II. 26, 27) records how a 
thunderbolt was hurled by the divine hand in 
such a manner as to castrate a lascivious priest : 
impurus et saltator sacerdos fulmine castratus. 
The same sort of retributive justice was recog- 
nized by the Institutes of Manu, which punished 
a thief by the amputation or mutilation of his 

In the covenant with Noah it was declared 
that human blood should be required not only 
"at the hand of man," but also "at the hand 
of every beast;" and it was subsequently 
enacted, in accordance with this fundamental 
principle, that "if an ox gore a man or a 
woman that they die, then the ox shall be surely 

Capital Punishment of Animals 169 

stoned, and his flesh shall not be eaten." To 
eat a creature which had become the peer of 
man in blood-guiltiness and in judicial punish- 
ment, would savour of anthropophagy. This 
decision of Jewish law-givers as to the use of 
the flesh of otherwise edible animals condemned 
to death for crime has nearly always been 
followed. Thus when, in 1553, several swine 
were executed for child-murder at Frankfort on 
the Main, their carcasses, although doubtless as 
good pork as could be found in the shambles, 
were thrown into the river. Usually, however, 
they were buried under the gallows or in what- 
ever spot was set apart for interring the dead 
bodies of human criminals. At Ghent, how- 
ever, in 1578, after judicial sentence of death 
had been pronounced on a cow, she was 
slaughtered and her flesh sold as butcher's meat, 
half of the proceeds of the sale being given as 
compensation to the injured party and the other 
half to the city treasury for distribution among 
the poor ; but her head was struck off and stuck 
on a stake near the gallows, to indicate that she 
had been capitally punished. The thrifty Flem- 
ings did not permit the moral depravity to taint 
the material substance of the bovine culprit and 
impair the excellence of the beef. 

On the other hand, the Law Faculty of the 
University of Leipsic decided that a cow, which 
had pushed a woman and thereby caused her 
death at Machern in Saxony, July 20, 162 1, 

lyo The Criminal Prosecution and 

should be taken to a secluded and barren place 
and there killed and buried " unflayed." In 
this case the flesh of the homicidal animal was 
not to be eaten nor the hide converted into 
leather. (Vide Appendix S.) 

In this connection it may be interesting to 
mention a decision of the Ecclesiastical Court 
(geistlicher Convent) of Berne, given in 1666 
and recorded in Tiirler's Strafrechtliche Gut- 
achten des geistlichen Konvents der Stadt Bern 
{Zeitschrift fiir schweiz. Strafrecht, Bd. III., 
Heft 5. Quoted by Tobler). An insane man 
was tried for murder and the prosecutor seems 
to have urged that the lack of moral responsi- 
bility did not suffice to relieve the accused of 
legal responsibility and to free him from punish- 
ment, citing as pertinent to the case the Mosaic 
law, which inflicted the death penalty on an ox 
for the like offence. On this point the court 
replied : "In the first place, that specifically 
Jewish law is not binding upon other govern- 
ments, and is not observed by them either as 
regards oxen or horses. Again, even if the 
Jewish law should be really applicable to all men, 
it could not be appealed to in the present case, 
since it is not permissible to draw an inference 
a hove ad hominem. Inasmuch as no law is 
given to the ox, it cannot violate any, in other 
words, cannot sin and therefore cannot be 
punished. On the other hand, death is a severe 
penalty for man. Nevertheless if God com- 

Capital Punishment of Animals 171 

manded that the ' goring ox ' should be killed, 
this was done in order to excite aversion to the 
deed, to prevent the animal from injuring others, 
and in this manner to punish the owner of the 
beast. This fact, however, proves nothing 
touching the case now before us; for, although 
God enacted a law for the ox, he did not enact 
any for the insane man, and the distinction be- 
tween the goring ox and the maniac must be 
observed. An ox is created for man's sake, and 
can therefore be killed for his sake; and in doing 
this there is no question of right or wrong as 
regards the ox; on the other hand, it is not 
permissible to kill a man, unless he has deserved 
death as a punishment." The remarkable points 
in this decision are, first, the abrogation of a 
biblical enactment by an ecclesiastical court of 
the seventeenth century, and, secondly, the dis- 
cussion of a criminal act from a psychiatrical 
point of view and the admission of extenuating 
and exculpating circumstances derived from this 

The Koran holds every beast and fowl ac- 
countable for injuries done to each other, but 
reserves their punishment for the life to come. 
Among the Kukis, if a man falls from a tree and 
is killed, it is the sacred duty of the next of kin 
to fell the tree, and cut it up and scatter the 
chips abroad. The spirit of the tree was sup- 
posed to have caused the mishap, and the blood 
of the slain was not thought to be thoroughly 
avenged until the offending object had been 

172 The Criminal Prosecution and 

effaced from the earth. A survival of this notion 
was the custom of burning heretics and flinging 
their ashes to the four winds or casting them 
upon rivers running into the sea. The laws of 
Drakon and Erechtheus required weapons and 
all other objects, by which a person had lost 
his life, to be publicly condemned and thrown 
beyond the Athenian boundaries. This sentence 
of banishment, then regarded as one of the 
severest that could be inflicted, was pronounced 
upon a sword, which had killed a priest, the 
wielder of the same being unknown ; and also 
upon a bust of the elegiac poet Theognis, which 
had fallen on a man and caused his death. Even 
in cases which, one would think, might be re- 
garded as justifiable homicide in self-defence, no 
such ground of exculpation seems to have been 
admitted. Thus the statue erected by the Athen- 
ians in honour of the famous athlete, Nik6n of 
Thasos, was assailed by his envious foes and 
pushed from its pedestal. In falling it crushed 
one of its assailants, and was therefore brought 
before the proper tribunal and sentenced to be 
cast into the sea. Judicial proceedings of this 
kind were called S.^vxo^v bUai (prosecutions of 
lifeless things) and were conducted before the 
Athenian law-court known as the Prytaneion ; 
they are alluded to by ^schines, Pausanias, 
Demosthenes, and other writers, and briefly de- 
scribed in the Onomasticon of Julius Pollux and 
the Lexicon Decern Oratorum Graecorum of 
Valerius Harpokration. 

Capital Punishment of Animals 173 

Strictly speaking, the term ayjrvxov should be 
applied only to an inanimate object and not to 
the brute, which was more correctly called 6.(f)oyvov 
(dumb) ; but this distinction was not always ob- 
served either in common parlance or in legal 
phraseology. The law on this point as formu- 
lated and expounded by Plato (De Leg., IX. 12) 
was as follows: " If a draught animal or any 
other beast kill a person, unless it be in a com- 
bat authorized and instituted by the state, the 
kinsmen of the slain shall prosecute the said 
homicide for murder, and the overseers of the 
public lands {aypov6fi,oi), as many as may be com- 
missioned by the said kinsmen, shall adjudicate 
upon the case and send the offender beyond the 
boundaries of the country (e^opiCew, exterminate 
in the literal and original sense of the term). 
If a lifeless thing shall deprive a person of life, 
provided it may not be a thunderbolt (xepawo's) 
or other missile (/3eXos) hurled by a god, but an 
object which the said person may have run 
against or by which he may have been struck 
and slain, then the kinsman immediate to the 
deceased shall appoint the nearest neighbour 
as judge in order to purify himself as well as 
his next of kin from blood-guiltiness, but the 
culprit (to o(j)\ov) shall be put beyond the 
boundaries, in the same manner as if it were 
an animal." In the same section it is enacted 
that if a person be found dead and the mur- 
derer be unknown, then proclamation shall be 
made by a herald on the market-place forbid- 

1/4 The Criminal Prosecution and 

ding the murderer to enter any sanctuary or the 
land of the slain, and declaring that, if dis- 
covered, he shall be put to death and his body 
be thrown unburied beyond the boundaries of the 
country of the person killed. The object of these 
measures was to appease the Erinnys or avenging 
spirit of the deceased, and to avert the calamities 
which would otherwise be brought upon the land, 
in accordance with the strict law of retribution 
demanding blood for blood, no matter whether 
it may have been shed wilfully or accidentally. 
[Cf. ^schylus, Cho., 395, where this law (wf^os) 
is clearly and strongly affirmed.] The same 
superstitious feeling leads the hunters of many 
savage tribes to beg pardon of bears and other 
wild animals for killing them and to purify 
themselves by religious rites from the taint in- 
curred by such an act, the iJ-Caa-jxa of murder, 
as the Greeks called it. 

Quite recently in China fifteen wooden idols 
were tried and condemned to decapitation for 
having caused the death of a man of high 
military rank. On complaint of the family of 
the deceased the viceroy residing at Fouchow 
ordered the culprits to be taken out of the temple 
and brought before the criminal court of that 
city, which after due process of law sentenced 
them to have their heads severed from their 
bodies and then to be thrown into a' pond. The 
execution is reported to have taken place in the 
presence of a large concourse of approving spec- 
tators and "amid the loud execrations of the 

Capital Punishment of Animals 175 

masses," who seem in their excitement to have 
" lost their heads " as well as the hapless deities. 

When the Russian prince Dimitri, the son of 
Ivan II., was assassinated on May 15, 1591, at 
Uglich, his place of exile, the great bell of that 
town rang the signal of insurrection. For this 
serious political offence the bell was sentenced 
to perpetual banishment in Siberia, and con- 
veyed with other exiles to Tobolsk. After a 
long period of solitary confinement it was par- 
tially purged of its iniquity by conjuration and 
re-consecration and suspended in the tower of a 
church in the Siberian capital ; but not until 1892 
was it fully pardoned and restored to its original 
place in Uglich. A like sentence was imposed 
by a Russian tribunal on a butting ram in the 
latter half of the seventeenth century. 

Mathias Abele von Lilienberg, in his Meta- 
morphosis Telae Judiciariae, of which the eighth 
edition was published at Nuremberg in 1712, 
states that a drummer's dog in an Austrian 
garrison town bit a member of the municipal 
council in the right leg. The drummer was sued 
for damages, but refused to be responsible for the 
snappish cur and delivered it over to the arm of 
justice. Thereupon he was released, and the 
dog sentenced to one year's incarceration in the 
Narrenkotterlein, a sort of pillory or iron cage 
standing on the market-place, in which blas- 
phemers, evil-livers, rowdies and other peace- 
breakers were commonly confined. [The Nar- 
renkotterlein, Narrenkoderl or Kotter formerly 

176 The Criminal Prosecution and 

on the chief public squares in Vienna are de- 
scribed as " Menschenkafige mit Gittern von 
Eisen und Holz, bestimmt das darin versperrte 
Individuum dem Spotte des Pobels preiszu- 
geben (zu narren)." Schlager : Wiener Skizzen 
aus dem Mittelalter, II. 245.] Mornacius also 
relates that several mad dogs, which attacked 
and tore in pieces a Franciscan novice in 1610, 
were ' ' by sentence and decree of the court put 
to death." It is surely reasonable enough that 
mad dogs should be killed; the remarkable 
feature of the case is that they should be form- 
ally tried and convicted as murderers by a legal 
tribunal, and that no account should have been 
taken of their rabies as an extenuating circum- 
stance or ground of acquittal. In such a case 
the plea of insanity would certainly seem to 
be naturally suggested and perfectly valid. 

On the other hand, it is expressly declared in 
the Avesta that a mad dog shall not be per- 
mitted to plead insanity in exculpation of itself, 
but shall be " punished with the punishment of 
a conscious and premeditated offence (baodho- 
•varsta), i.e. by progressive mutilation, corre- 
sponding to the number of persons or beasts it 
has bitten, beginning with the loss of its ears, 
extending to the crippling of its feet and ending 
with the amputation of its tail. This cruel and 
absurd enactment is wholly inconsistent with the 
kindly spirit shown in the Avesta towards all 
animals recognized as the creatures of Ahura- 
mazda, and especially with the many measures 

Capital Punishment of Animals 177 

taken by the Indo-Aryans as a pastoral people 
for the protection of the dog. Indeed, a para- 
graph immediately following in the same chapter 
commands the Mazdayasnians to treat such a 
rabid dog humanely, and to " wait upon him 
with medicaments and to try to heal him, just 
as they would care for a righteous man." On 
this important point Avestan legislation is so 
inconsistent and self-contradictory that one may 
justly suspect the harsh enactments to be later 

A curious example of imputed crime and its 
penal consequences is seen in the Roman custom 
of celebrating the anniversary of the preserva- 
tion of the Capitol from the night-attack of the 
Gauls, not only by paying honour to the de- 
scendants of the sacred geese, whose cries gave 
warning of the enemy's approach, adorning them 
with jewels and carrying them about in litters, 
but also by crucifying a dog, as a punishment for 
the want of vigilance shown by its progenitors on 
that occasion. This imputation of merit and de- 
merit was really no more absurd than to visit the 
sins of the fathers on the children, as prescribed 
by Jewish and other ancient lawgivers, or to 
decree corruption of blood in persons attainted of 
treason, as is still the practice of modern states, 
or any other theory of inherited guilt or scheme 
of vicarious atonement, th9,t sets the sin of the 
federal head of the race to the account of his 
remotest posterity and relieves them from its 
penalties only through the suffering and death 

178 The Criminal Prosecution and 

of a wholly innocent person. They are all appli- 
cations of the barbarous principle, which, in 
primitive society, with its gross conceptions of 
justice, made the entire tribe responsible for the 
conduct of each of its members. The vendetta, 
which continues to be the unwritten but inviol- 
able code of many semi-civilized communities, 
is based upon the same conception of consan- 
guineous solidarity for the perpetration and 
avenging of crime. . 

According to an old Anglo-Saxon law, 
abolished by King Canute, in case stolen pro- 
perty was found in the house of a thief, his wife 
and family, even to the infant in the cradle, 
though it had never taken food (fedh hit nafre 
metes ne dhite), were punished as partakers of 
his guilt. The Schwabenspiegel, the oldest 
digest of South German law, treated as acces- 
saries all the domestic animals found in a house, 
in which a crime of violence had been com- 
mitted, and punished them with death. [" Man 
soil allez daz totden daz in den huze ist ge- 
vonden : leuten und vie, ros und rinder, hunde 
und katzen, ganzen und hundre." § 290.] 

Cicero approved of such penalties for political 
crimes as "severe but wise enactments, since 
the father is thereby bound to the interests of 
the state by the strongest of ties, namely, love 
for his children." Roman law under the empire 
punished treason with death and then added : 
" As to the sons of traitors, they ought to suffer 
the same penalty as their parents, since it is 

Capital Punishment of Animals 179 

highly probable that they will sometime be 
guilty of the same crime themselves; never- 
theless, as a special act of clemency, we grant 
them their lives, but, at the same time, declare 
them to be incapable of inheriting anything from 
father or mother or of receiving any gift or 
bequest in consequence of any devise or testa- 
ment of kinsmen or friends. Branded with 
hereditary infamy and excluded from all hope of 
honour or of property, may they suffer the 
torture of disgrace and poverty until they shall 
look upon life as a curse and long for death as 
a kind release." This atrocious edict of the 
emperors Arcadius and Honorius has its counter- 
part in the still more radical code of Pachacutez, 
the Justinian of the ancient Peruvians, which 
punished adultery with the wife of an Inca by 
putting to death not only the adulteress and her 
seducer, but also the children, slaves and kindred 
of the culprits, as well as all the inhabitants of 
the city in which the crime was committed, 
while the city itself was to be razed and the site 
covered with stones. 

The principle enunciated by Cicero has also 
been accepted by modern legislators as applic- 
able to high treason. Thus, when Tschech, the 
burgomaster of Storkow, attempted to take the 
life of Frederic William of Prussia, July 26, 
1844, he was tried and executed Dec. 14 of 
the same year. On the day after his execution 
his only daughter, Elizabeth, was arrested, and 
to her inquiry by what right she had been 

i8o The Criminal Prosecution and 

deprived of her freedom, the authorities replied 
that, "according to Prussian law the children 
of a person convicted of high treason and all the 
members of his family, especially if they seemed 
to be dangerous and to share the opinions of 
their father, can be imprisoned for life or 
banished from the country." The young lady 
was then exiled to Westphalia, and there placed 
in the custody of an extremely austere parson, 
until she finally escaped to France, and after- 
wards to Switzerland, where she spent the rest 
of her days. 

When the prefects Tatian and Proculus fell 
into disgrace, Lycia, their native land, was 
deprived of the autonomy it had hitherto enjoyed 
as a Roman province, and its inhabitants were 
disfranchised and declared incapable of holding 
any office under the empire. So, too, when 
Joshua discovered some of the spoils of Jericho 
hidden in the tent of Achan, not only the thief 
himself, but also " his sons, and his daughters, 
and his oxen, and his asses, and his sheep, and 
his tent, and all that he had," were brought into 
the valley of Achor, and there stoned with stones 
and burned with fire. About this time, how- 
ever, such holocausts of justice were suppressed 
among the Jews, and a law enacted that hence- 
forth " the fathers shall not be put to death for 
the children, neither shall the children be put 
to death for the fathers, every man shall be put 
to death for his own sin;" or, as Jeremiah ex- 
presses it figuratively, the children's teeth were 

Capital Punishment of Animals i8i 

to be no longer set on edge by the sour grapes 
which their fathers had eaten. Yet the per- 
sistency of time-honoured custom and its power 
of overriding new statutes are seen in the fact 
that, several centuries later, at the request of the 
Gibeonites, whom it had become desirable to 
conciliate, David did not scruple to deliver up 
to them seven of Saul's sons to be hanged for 
the evil which their father had wrought in slay- 
ing these foes of Israel. It would have been a 
parallel case if Bismarck had sought to win the 
friendship and favour of the French by giving 
into their hands the descendants of Blucher to 
be guillotined on the Place de la Concorde, or, 
after having made a political pilgrimage to 
Canossa, should surrender the children of Dr. 
Falk to be racked and burned at the stake by the 

According to the current orthodox theology, 
treason against God, committed by our common 
progenitor, worked "corruption of blood" in 
the whole human race, all the children of men 
being attainted with guilt in consequence of the 
act of their first parent. This crude and brutal 
conception of justice is the survival of a primi- 
tive and barbarous state of society, and it is 
curious to observe how the most highly civilized 
peoples, who have outgrown this notion and set 
it aside in the secular relations of man to man, 
still cling to it as something sacred and sublime 
in the spiritual relations of man to the deity. 
Only the all-wise and all-powerful sovereign of 

1 82 The Criminal Prosecution and 

the universe is supposed to continue to 
administer law and justice on principles which 
common-sense and the enlightened opinion 
of mankind have long since abrogated and 
banished from earthly legislation. Thus the 
divine government, instead of keeping pace with 
the progress of human institutions, still cor- 
responds to the ideals of right and retribution 
entertained by savage tribes and the lowest types 
of mankind. 

The horrible mutilations to which criminals 
were formerly subjected, originated in an en- 
deavour to administer strictly even-handed 
justice. What could be fairer or more fit than 
to punish perjury by cutting off the two fingers 
which the perjurer had held up in taking the 
violated oath ? It was a popular belief that the 
fingers of an undetected perjurer would grow 
out of the grave after death, seeking retributive 
amputation, as a plant seeks the light, and that 
his ghost would never rest until this penalty had 
been inflicted. (See Heinrich Roch : Schles. 
Chron., p. 267, where a case of this kind is 
recorded.) The Carolina (constitutio criminalis 
Carolina), although in many respects an advance 
on mediaeval penal legislation, doomed incendi- 
aries to be burned alive; and an old law, cited 
by Dopier (Theat. Poen., II. 271), condemned a 
man who had dug up and removed a boundary 
stone to be buried in the earth up to his neck 
and to have his head plowed off with a new plow, 
thus symbolizing in his own person the grave 

Capital Punishment of Animals 183 

offence which he had committed. Ivan Basilo- 
vitch, a Muscovite prince, ordered that an ambas- 
sador, who did not uncover in his presence, 
should have his hat nailed to his head ; and it is 
a feeble survival of the same idea of proper 
punishment that makes the American farmer 
nail the dead hawk to his barn-door, just as in 
former times it was customary to crucify high- 
way robbers at cross-roads. 

According to an old Roman law ascribed to 
Numa Pompilius, the oxen which plowed up 
a boundary stone, as well as their driver, were 
sacrificed to Jupiter Terminus. In the early 
development of agriculture, and the transition 
from communal to personal property in land, this 
severe enactment was deemed necessary to the 
protection of the "sacra saxa," by which the 
boundary lines of the fields were defined. Only 
by making the violation of enclosed ground a 
sacrilege was it possible to prevent encroach- 
ments upon it, so strong was the lingering preju- 
dice against individual possessions of this kind 
running in the blood of a people descended from 
nomadic tribes of herdsmen, who regarded 
sedentary communities engaged in tilling the 
soil as their direst foes. The lawgiver knew 
very well that the oxen were involuntary agents, 
and that the plowman alone was culpable; but 
when a religious atonement is to be made and an 
angry god appeased, moral distinctions deter- 
mining degrees of responsibility are uniformly 
ignored, and the innocent are doomed to suffer 

184 The Criminal Prosecution and 

with the guilty. The oxen were tainted by the 
performance of an act, in which the exercise of 
their will was not involved, and must there- 
fore be consigned to the offended deity. The 
same is true of the plowman, who did not escape 
immolation even when the motio termini or 
displacement of the boundary stone occurred 

That the feeling, which found expression in 
such enactments and usages and survives in 
schemes of expiation and vicarious sacrifice, lies 
scarcely skin-deep under the polished surface of 
our civilization, is evident from the force and 
suddenness with which it breaks out under 
strong excitement, as when Cincinnati rioters 
burn the court-house because they suspect the 
judges of venality and are dissatisfied with the 
verdicts of the juries. The primitive man and 
the savage, like the low and ignorant masses of 
civilized communities, do not take into con- 
sideration whether the objects from which they 
suffer injury are intelligent agents or not, but 
wreak their vengeance on stocks and stones and 
brutes, obeying only the rude instinct of 
revenge. The power of restraining these abo- 
riginal propensities, and of nicely analyzing 
actions and studying mental conditions in order 
to ascertain degrees of moral responsibility, 
presupposes a high degree of mental develop- 
ment and refinement and great acuteness of 
psychological perception, and is, in fact, only a 
recent acquisition of a small minority of the 

Capital Punishment of Animals 185 

human race. The vast bulk of mankind will 
have to pass through a long process of intel- 
lectual evolution, and rise far above their present 
place in the ascending scale of culture before 
they attain it. 

For this reason Lombroso would abolish trial 
by jury, which seems to him not a sign of pro- 
gress towards better judicatory methods, but a 
clumsy survival of primitive justice as adminis- 
tered by barbarous tribes and even gregarious 
animals. It makes the administration of justice 
dependent upon popular prejudice and passion, 
and finds its most violent expression or explo- 
sion in lynch law, which is only trial by a jury 
of the whole community gone mad. It would 
certainly be a dismal farce to apply to the 
criminal classes the principle that every man 
must be judged by his peers. In the cantonal 
courts of Switzerland the verdict of the jury is 
uniformly in favour of the native against the 
foreigner, no matter what the merits of the case 
may be ; and this outrageous perversion of right 
and equity is called patriotism, a term which 
conveniently sums up and euphemizes the 
general sentiment of Helvetian innkeepers and 
tradesmen that "the stranger within their 
gates " is their legitimate spoil, arid has no other 
raison d'etre. In Italy, especially in Naples 
and Sicily, a thief may be sometimes con- 
demned, but a murderer is almost invariably 
acquitted by the jury, whose decision expresses 
the corrupted moral sense of a people accus- 

1 86 The Criminal Prosecution and 

tomed to admire the bandit as a hero and 
to consider brigandage a highly honourable 

The childish disposition to punish irrational 
creatures and inanimate objects, which is common 
to the infancy of individuals and of races, has 
left a distinct trace of itself in that peculiar in- 
stitution of English law known as deodand, and 
derived partly from Jewish and partly from old 
German usages and traditions. " If a horse," 
says Blackstone, " or any other animal, of its 
own motion kill as well an infant as an adult, 
or if a cart run over him, they shall in either 
case be forfeited as deodand." If a man, in 
driving a cart, tumble to the ground and lose his 
life by the wheel passing over him, if a tree fall 
on a man and cause his death, or if a horse kick 
his keeper and kill him, then the wheel, the tree 
and the horse are deodands pro rege, and are to 
be sold for the benefit of the poor. 

Omnia quae movent ad mortem, sunt Deo 
danda is the principle laid down by Bracton. 
If therefore a cart-wheel run over a man and kill 
him, not only is the wheel, but also the whole 
cart to be declared deodand, because the mo- 
mentum of the cart in motion contributed to the 
man's death; but if the shaft fall upon a man 
and kill him, then only the shaft is deodand, 
since the cart did not participate in the crime. 
It is also stated, curiously enough, that if an 
infant fall from a cart not in motion and be 
killed, neither the horse nor the cart shall be 

Capital Punishment of Animals 187 

declared deodand; not so, however, if an adult 
come to his death in this manner. The ground 
of this distinction is not quite clear; although 
it may arise from the assumption that the child 
had no business there, or that such an accident 
could not have happened to an adult, unless 
there was something irregular and perverse in 
the conduct of the animal or the vehicle. In 
the archives of Maryland, edited by Dr. William 
Hand Browne and Miss Harrison in 1887, men- 
tion is made of an inquest held January 31, 1637, 
on the body of a planter, who " by the fall of 
a tree had his bloud bulke broken." " And 
furthermore the Jurors aforesaid upon their oath 
aforesaid say that the said tree moved to the death 
of the said John Bryant ; and therefore find the 
said tree forfeited to the Lord Proprietor." 

According to an old Anglo-Saxon law a sword 
or other object by which a man had been slain, 
was not regarded as pure (gesund) until the 
crime had been expiated, and therefore could not 
be used, but must be set apart as a sacrifice. A 
sword-cutler would not take such a weapon to 
polish or repair without a certificate that it was 
gesund or free from homicidal taint, so as not 
to render himself liable for any harm it might 
inflict, since it was supposed to exert a certain 
magical and malicious influence. Also an 
ancient municipal law of the city of Schleswig 
stipulated that the builder of a house should be 
held responsible in case any one should be killed 
by a beam, block, rafter or other piece of timber. 

1 88 The Criminal Prosecution and 

and pay a fine of nine marks, or give the object 
that had committed the manslaughter to the 
family or kinsmen of the slain. If he failed to 
do so and built the contaminated timber into 
the edifice, then the owner had to atone for the 
homicide with the whole house. (Cf. Heinrich 
Brunner : Deutsche Rechtsgeschichte, II. p. 
557, Anm. 31.) A modern survival of this legal 
principle is the notion, current especially among 
criminals, that any part of the body of a deceased 
person, or better still of an executed murderer, 
exerts a magical and protective power or brings 
good luck. It is by no means uncommon among 
the peasants and lower classes of Europe to put 
the finger of a dead thief under tlie threshold 
in order to protect the house homoepathically 
against theft. The persistency of this supersti- 
tion is shown by the fact that a farmer's hired 
man named Sier and belonging to the hamlet 
of Heumaden, was tried at Weiden in Bavaria, 
May 23, 1894, ^i^d convicted of having exhumed 
the body of a newly buried child in the church- 
yard of Moosbach and taken out one of its eyes, 
which he supposed would render him invisible 
to mortal sight like the famous tarnkappe of old 
German mythology, and thus enable him to 
indulge with impunity his propensity to steal. 
For this sacrilege he was sentenced to one year 
and two months' imprisonment and to the loss 
of civil rights for three years. 

In some of the Scottish islands it is the custom 
to beach a boat, from which a fisherman had 

Capital Punishment of Animals 189 

been drowned, cursing it for its misdeed and 
letting it dry and fall to pieces in the sun. The 
boat is guilty of manslaughter and must no 
longer be permitted to sail the sea with innocent 
craft. Scotch law does not seem to have recog- 
nized deodand in the strictly etymological sense 
of the term, but only escheat, in other words, 
the confiscated objects were not necessarily ap- 
pled to pious purposes — fro anima regis et 
omnium fidelium defiinctorum — but were simply 
forfeited to the king or to the state. This form 
of confiscation never prevailed so generally in 
Central and Eastern, as in Western Europe. 
Some German communities and territorial sove- 
reigns introduced it from France, but so modified 
the practical application of the principle as to 
award to the injured party the greater portion, 
in Liineburg, for example, two-thirds of the 
value of the confiscated animal or object. (Vide 
Kraut's Stadtrecht von Liineburg, No. XCVII. 
Cited by Von Amira, p. 594.) 

Blackstone's theories of the origin of deodands 
are exceedingly vague and unsatisfactory. Evi- 
dently the learned author of the Commentaries 
could give no consistent explanation of these 
vestiges of ancient criminal legislation. His 
statement that they were intended to punish the 
owner of the forfeited property for his negli- 
gence, and his further assertion that they were 
" designed, in the blind days of popery, as an 
expiation for the souls of such as were snatched 
away by sudden death," are equally incorrect. 

I go The Criminal Prosecution and 

In most cases the owner was perfectly innocent 
and very frequently was himself the victim of 
the accident. He suffered only incidentally 
from a penalty imposed for a wholly different 
purpose, just as a slaveholder incurs loss when 
his human chattel commits murder and is hanged 
for it. The primal object was to atone for the 
taking of life in accordance with certain crude 
conceptions of retribution. Under hierarchical 
governments the prominent idea was to appease 
the wrath of God, who otherwise might visit 
mankind with famine and pestilence and divers 
retaliatory scourges. For the same reason the 
property of a suicide was deodand. Thus the 
wife and children of the deceased, who may be 
supposed to have already suffered most from 
the fatal act, were subjected to additional punish- 
ment for it by being robbed of their rightful 
inheritance. Yet this was by no means the in- 
tention of the lawmakers, who simply wished 
to prescribe an adequate atonement for a griev- 
ous offence, and in seeking to accomplish this 
main purpose, ignored the effect of their action 
upon the fortunes of the heirs or deemed it a 
matter of minor consideration. 

Ancient legislators uniformly regarded a felo 
de se as a criminal against society and treated 
him as a kind of traitor. The man had enjoyed 
the support and protection of the body-politic 
during his infancy and youth, and, by taking 
his own life, he shook off the responsibilities and 
shirked the duties devolving upon him as an 

Capital Punishment of Animals 191 

adult member of the commonwealth. This is 
why self-murder was called felony and as such 
involved forfeiture of goods. Calchas would not 
permit the body of " the mad Ajax," who died 
by his own hand, to be burned; and the Chris- 
tian Church of to-day refuses to bury in conse- 
crated ground with religious rites any person 
who deliberately cuts short the thread of his 
existence and thus commits treason against the 
Most High. The Athenians ignominiously 
lopped off the hand of a suicide and buried the 
guilty instrument of his death, as an accursed 
thing, apart from the rest of the interred or 
incremated body. In some communities all 
persons over sixty years of age have been left 
free to kill themselves, if they wished to do so. 
They had performed the duties of citizenship and 
of procreation and were permitted to retire in 
this way, if they saw fit. In very ancient times, 
the magistrates of Massalia (Marseilles, then a 
Greek colony) are said to have kept on hand a 
supply of poison to be given to any citizen, who, 
on due examination, was found to have good 
and sufficient reason for taking his own life. 
Suicide was thus legalized and facilitated, and 
thereby rendered honourable, and was perhaps 
found more convenient and economical than to 
grant pensions or to support paupers. It was a 
summary method of getting rid of those who had 
finished the struggle for existence or failed in 
it, and in either case might be a burden to them- 
selves or to the state. On the other hand, when 

192 The Criminal Prosecution and 

a suicidal mania seized upon the maidens of 
Miletos, an Ionian city in Caria, and threatened 
to produce a dearth of wives and mothers, the 
municipal authorities decreed that the bodies of 
all such persons should be exposed naked in the 
market-place, in order that virgin modesty and 
shame might overcome the desire of death, and 
check a self-destructive passion extremely detri- 
mental to the Milesian commonwealth. 

It is true, as Blackstone asserts, that the 
Church claimed deodands as her due and put 
the price of them into her own coffers; but this 
fact does not explain their origin. They were 
an expression of the same feeling that led the 
public authorities to fill up a well, in which a 
person had been drowned, not as a precautionary 
measure, but as a solemn act of expiation; or 
that condemned and confiscated a ship, which, 
by lurching, had thrown' a man overboard and 
caused his death. 

Deodands were not abolished in England until 
the reign of Queen Victoria. With the excep- 
tion of some vestiges of primitive legislation 
still lingering in maritime law, they are, in 
modern codes, one of the latest applications of a 
penal principle, which, in Athens, expatriated 
stocks and stones, and in other countries of 
Europe excommunicated bugs and sent beasts to 
the stake and to the gallows. 

Capital Punishment of Animals 193 



A STRIKING and significant indication of the 
remarkable change that has come over the spirit 
of legislation, and more especially of criminal 
jurisprudence, in comparatively recent times, is 
the fact that whereas, a few generations ago, law- 
givers and courts of justice still continued to 
treat brutes as men responsible for their mis- 
deeds, and to punish them capitally as male- 
factors, the tendency now-a-days is to regard men 
as brutes, acting automatically or under an in- 
sane and irresistible impulse to evil, and to plead 
this innate and constitutional proclivity, in pro- 
secution for murder, as an extenuating or even 
wholly exculpating circumstance. Some persons 
even maintain, as we have already seen, that 
such criminals are diabolically possessed and 
thus account for their inveterate and otherwise 
incredible perversity on the theory held by the 
highest authorities in the Middle Ages concern- 
ing the nature of noxious animals. 

Mediaeval jurists and judges did not stop to 
solve intricate problems of psycho-pathology nor 

194 The Criminal Prosecution and 

to sift the expert evidence of the psychiater. 
The legal maxim : Si duo faciunt idem non est 
idem (if two do the same thing, it is not the 
same) was too fine a distinction for them, even 
when one of the doers was a brute beast. The 
puzzling knots, which we seek painfully to untie 
and often succeed only in hopelessly tangling, 
they boldly cut with executioner's sword. They 
dealt directly with overt acts and administered 
justice with a rude and retaliative hand, more 
accustomed and better adapted to clinch a fist 
and strike a blow than to weigh motives nicely 
in a balance, to measure gradations of culpa- 
bility, or to detect delicate differences in the 
psychical texture and spiritual qualities of deeds. 
They put implicit faith in Jack Cade's prescrip- 
tion of " hempen caudle " and " pap of hatchet " 
as radical remedies for all forms and degrees of 
criminal alienation and murderous aberration of 
mind. Phlebotomy was the catholicon of the 
physician and the craze of the jurist; blood- 
letting was regarded as the only infallible cure 
for all the ills that afflict the human and the 
social body. Doctors of physic and doctors of 
law vied with each other in applying this 
panacea. The red-streaked pole of the barber- 
surgeon and the reeking scaffold, symbols of 
venesection as a means of promoting the physical 
and moral health of the community, were the 
appropriate signs of medicine and jurisprudence. 
Hygeia and Justicia, instead of being repre- 

Capital Punishment of Animals 195 

sented by graceful females feeding the emblem- 
atic serpent of recuperation or holding with 
firm and even hand the well-poised scales of 
equity, would have been more fitly typified by 
two enormous leeches gorged with blood. 

Even the dead, who should have been hanged, 
but escaped their due punishment, could not rest 
in their graves until the corpse had suffered the 
proper legal penalty at the hands of the public 
executioner. Their restless ghosts wandered 
about as vampires or other malicious spooks 
until their crimes had been expiated by digging 
up their bodies and suspending them from the 
gallows. Culprits, who died on the rack or in 
prison, were brought to the scaffold as though 
they were still alive. In 1685, a were-wolf, sup- 
posed to be the incarnation of a deceased burgo- 
master of Ansbach, did much harm in the neigh- 
bourhood of that city, preying upon the herds 
and even devouring women and children. With 
great difficulty the ravenous beast was finally 
killed; its carcass was then clad in a tight suit 
of flesh-coloured cere-cloth, resembling in tint 
the human skin, and adorned with a chestnut 
brown wig and a long whitish beard ; the snout 
of the beast was cut off and a mask of the burgo- 
master's features substituted for it, and the 
counterfeit presentment thus produced was 
hanged by order of the court. The pelt of the 
strangely transmogrified wolf was stuffed and 
preserved in the margrave's cabinet of curiosities 

196 The Criminal Prosecution and 

as a memorial of the marvellous event and as 
ocular proof of the existence of were-wolves. 

In Hungary and the Slavic countries of Eastern 
Europe the public execution of vampires was 
formerly of frequent occurrence, and the super- 
stition, which gave rise to such proceedings, still 
prevails among the rural population of those 
semi-civilized lands. In 1337, a herdsman near 
the town of Cadan came forth from his grave 
every night, visiting the villages, terrifying the 
inhabitants, conversing affably with some and 
murdering others. Every person, with whom 
he associated, was doomed to die within eight 
days and to wander as a vampire after death. 
In order to keep him in his grave a stake was 
driven through his body, but he only laughed 
at this clumsy attempt to impale a ghost, saying : 
" You have really rendered me a great service 
by providing me with a staff, with which to ward 
off the dogs when I go out to walk." At length 
it was decided to give him over to two public 
executioners to be burned. We are informed 
that when the fire began to take effect, " he drew 
up his feet, bellowed for a while like a bull and 
hee-hawed like an ass, until one of the execu- 
tioners stabbed him in the side, so that the blood 
oozed out and the evil finally ceased." 

Again in 1345, in the town of Lewin, a potter's 
wife, who was reputed to be a witch, died and, 
owing to suspicions of her pact with Satan, was 
refused burial in consecrated ground and dumped 

Capital Punishment of Animals 197 

into a ditch like a dog. Tiie event proved that 
she was not a good Christian, for instead of 
remaining quietly in her grave, such as it was, 
she roamed about in the form of divers unclean 
beasts, causing much terror and slaying sundry 
persons. Thereupon she was exhumed and it 
was found that she had chewed and swallowed 
one half of her face-cloth, which, on being pulled 
out of her throat, showed stains of blood. A 
stake was driven through her breast, but this 
precautionary measure only made matters worse. 
She now walked abroad with the stake in her 
hand and killed quite a number of people with 
this formidable weapon. She was then taken 
up a second time and burned, whereupon she 
ceased from troubling. The efficacy of this post- 
mortem auto da fe was accepted as conclusive 
proof that her neighbours had neglected to per- 
form their whole religious duty in not having 
burned her when she was alive, and were thus 
punished for their remissness. 

Dopier cites also the case of Stephen Hiibner 
of Trautenau, who wandered about after death 
as a vampire, frightening and strangling several 
individuals. By order of the court his body was 
disinterred and decapitated under the gallows- 
tree. When his head was struck off, a stream of 
blood spurted forth, although he had been already 
five months buried. His remains were reduced 
to ashes and nothing more was heard of him. 

In IS73> the parliament of D61e published a 

198 The Criminal Prosecution and 

decree permitting the inhabitants of the Franche 
Comt^ to pursue and kill a were-wolf or loup- 
garou, which infested that province; "not- 
withstanding the existing laws concerning the 
chase," the people were empowered to " assemble 
with javelins, halberds, pikes, arquebuses and 
clubs to hunt and pursue the said were-wolf in 
all places, where they could find it, and to take, 
bind and kill it, without incurring any fine or 
other penalty." The hunt seems to have been 
successful, if we may judge from the fact that 
the same tribunal in the following year (1574) 
condemned to be burned a man named Gilles 
Gamier, who ran on all fours in the forest and 
fields and devoured little children " even on 
Friday." The poor lycanthrope, it appears, 
had as slight respect for ecclesiastical fasts as the 
French pig already mentioned, which was not 
restrained by any feeling of piety from eating 
infants on a jour maigre. 

Henry VIII. of England summoned Thomas 
k Becket to appear before the Star Chamber to 
answer for his crimes and then had him con- 
demned as a traitor, and his bones, that had 
been nearly four centuries in the tomb and wor- 
shipped as holy relics by countless pilgrims, 
burned and scattered to the winds. 

When Stephen VI. succeeded to the tiara in 
896, one of his first acts was to cause the body of 
his predecessor, Formosus, to be exhumed and 
brought to trial on the charge of having un- 

Capital Punishment of Animals 199 

lawfully and sacrilegiously usurped the papal 
dignity. A writ of summons was issued in due 
form and the corpse of the octogenarian pope, 
which had lain already eight months in the 
grave, was dug up, re-arrayed in full pontificals 
and seated on a throne in the council-hall of St. 
Peter's, where a synod had been convened to 
adjudicate upon the case. No legal formality 
was omitted in this strange procedure and a 
deacon was appointed to defend the accused, 
although the synodical jury was known to be 
packed and the verdict predetermined. Formosus 
was found guilty and condemned to deposition. 
No sooner was the sentence pronounced than the 
executioners thrust him from the throne, stripped 
him of his pontifical robes and other ensigns of 
office, cut off the three benedictory fingers of his 
right hand, dragged him by the feet out of the 
judgment-hall and threw his body " as a pesti- 
lential thing" (uti quoddam mephiticum) into 
the Tiber. Not until several months later, after 
Stephen himself had been strangled in prison, 
were the mutilated and putrefied remains of For- 
mosus taken out of the water and restored to 
the tomb. The Athenian Prytaneum, as we 
have already seen, was guilty of the childish- 
ness of prosecuting inanimate objects, but it 
never violated the sepulchre for the purpose of 
inflicting post-humous punishment on corpses. 
The perpetration of this brutality was reserved 
for the Papal See. 

200 The Criminal Prosecution and 

From the standpoint of ancient and mediaeval 
jurisprudents the overt act alone was assumed 
to constitute the crime; the mental condition of 
the criminal was never or a least very seldom 
taken into consideration. It is remarkable how 
long this crude and superficial conception of 
justice prevailed, and how very recently even the 
first attempts have been made to establish penal 
codes on a philosophic basis. The punishable- 
ness of an offence is now generally recognized 
as depending solely upon the sanity and ration- 
ality of the offender. Crime, morally and legally 
considered, presupposes, not perfect, for such a 
thing does not exist, but normal freedom of the 
will on the part of the agent. Where this ele- 
ment is wanting, there is no culpabilty, whatever 
may have been the consequences of the act. 
Modern criminal law looks primarily to the 
psychical origin of the deed, and only secondarily 
to its physical effects; mediaeval criminal law 
ignored the origin altogether, and regarded ex- 
clusively the effects, which it dealt with on the 
homoeopenal principle of similia similibus puni- 
antur, for the most part blindly and brutally 

Mancini, Lombroso, Garofalo, Albrecht, Bene- 
dikt, Buchner, Moleschott, Despine, Fouill6e, 
Letourneau, Maudsley, Bruce Thompson, Nichol- 
son, Minzloff, Notovich and other European 
criminal lawyers, physiologists and anthro- 
pologists have devoted themselves with peculiar 

Capital Punishment of Animals 201 

zeal and rare acuteness to the study and solution 
of obscure and perplexing problems of psycho- 
pathological jurisprudence, and have drawn nice 
and often overnice distinctions in determining 
degrees of personal responsibility. Judicial pro- 
cedure no longer stops with testimony establish- 
ing the bald facts in the case, but admits also the 
evidence of the expert alienist in order to as- 
certain to what extent the will of the accused 
was free or functionally normal in its operation. 
Here it is not a question of raving madness or 
of drivelling idiocy, perceptible to the coarsest 
understanding and the crassest ignorance; but 
the slightest morbid disturbance, impairing the 
full and healthy exercise of the mental faculties, 
must be examined and estimated. If " privation 
of mind " and " irresistible force," says Zupetta, 
are exculpatory, then "partial vitiation of mind " 
and " semi-irresistible force " are entitled to the 
same or at least to proportional consideration. 
There are states of being which are mutually 
contradictory and exclusive and cannot co-exist, 
such as life and death. A partial state of life 
or death is impossible ; such expressions as half- 
alive and half-dead are hyperbolical figures of 
speech used for purely rhetorical purposes ; taken 
literally, they are simply absurd. It is not so, 
however, with states of mind. The intellect, 
whose soundness is the first condition of account- 
ability, may be perfectly clear, manifesting itself 
in all its fulness and power, or it may be parti- 

202 The Criminal Prosecution and 

ally obscured. So, too, the will, whose self- 
determination is the second condition of account- 
ability, may assert itself with complete freedom 
and untrammelled force, or it may act under stress 
and with imperfect volition. Moral coercion, 
whether arising from external influences, abnormi- 
ties of the physical organism or defects of the 
mental constitution, is not less real because it is 
not easy to detect and may not be wholly irre- 
sistible. For this reason, it involves no contra- 
diction in terms and is not absurd to call an 
action half-conscious, half-voluntary, or half- 
constrained. " Partial vitiation of mind " is a 
state distinctly recognized in psychiatrical 
science. In like manner, there is no essential 
incongruity in affirming that an impulse may be 
the result of a "semi-irresistible force." But 
these mental conditions and forces do not mani- 
fest themselves with equal obviousness and in- 
tensity in all cases ; sometimes they are scarcely 
appreciable; again they verge upon "absolute 
privation of mind" and "wholly irresistible 
force;" and it is the duty of the judge to adjust 
the penalty to the gradations of guilt as deter- 
mined by the greater or less freedom of the 

The same process of reasoning would lead to 
the admission of quasi-vitiations of mind and 
quasi-irresistible forces as grounds of exculpa- 
tion. Thus one might go on analyzing and refin- 
ing away human responsibility, and reducing all 

Capital Punishment of Animals 203 

crime to resultants of- mental derangement, until 
every malefactor would come to be looked upon, 
not as a culprit to be delivered over to the sharp 
stroke of the headsman or the safe custody of the 
jailer, but as an unfortunate victim of morbid 
states and uncontrollable impulses, to be con- 
signed to the sympathetic care of the psychiater. 
Italian anthropologists and jurisprudents have 
been foremost and gone farthest, both theo- 
retically and practically, in this reaction from 
mediaeval conceptions of crime and its proper 
punishment. This violent recoil from extreme 
cruelty to excessive commiseration is due, in a 
great measure, to the Italian temperament, to a 
peculiar gentleness and impressionableness of 
character, which, combined with an instinctive 
aversion to whatever shocks the senses and mars 
the pleasure of the moment, are apt to degenerate 
into shallow sentimentality and sickly sensi- 
bility, thereby enfeebling and perverting the 
moral sense and distorting all ideas of right and 
justice. To minds thus constituted the cool and 
deliberate , condemnation of a human being to 
the gallows is an atrocity, in comparison with 
which a fatal stab in the heat of passion or under 
strong provocation seems a light and venial 
transgression. This maudlin sympathy with the 
guilty living man, who is in danger of suffering 
for his crime, to the entire forgetfulness of the 
innocent dead man, the victim of his anger or 
cupidity, pervades all classes of society, and has 

204 The Criminal Prosecution and 

stimulated the ingenuity of lawyers and legisla- 
tors to discover mitigating moments and exten- 
uating circumstances and other means of loosen- 
ing and enlarging the intricate meshes of the 
penal code so as to permit the culprit to escape. 
To this end they eagerly seized upon the doctrine 
of evolution and endeavoured to seek the origin 
of crime in hereditary propensities, atavistic recur- 
rences, physical degeneracies and other organic 
fatalities, for which no one can be held personally 
responsible, and constructed upon the basis of 
the most recent scientific researches a penological 
system giving free scope and full gratification 
to this pitying and palliating disposition. 

But, although the Italians have been pioneers 
in this movement, it has not been confined to 
them ; it extends to all civilized nations, and 
expresses a general tendency of the age. Even 
the Germans, those leaders in theory and lag- 
gards in practice, whose studies and speculations 
have illustrated all forms and phases of judicial 
procedure, but who adhere so conservatively to 
ancient methods and resist so stubbornly the 
tides of reform in their own courts have yielded 
on this point. They no longer regard insanity 
and idiocy as the only grounds of exemption 
from punishment, but include in the same 
category "all morbid disturbances of mental 
activity," and "all states of mind in which the 
free determination of the will is not indeed wholly 
destroyed, but only partially impaired." In 

Capital Punishment of Animals 205 

order to realize the radical changes that have 
taken place in this direction within a relatively 
recent period^ it will suffice merely to compare 
the present criminal code of the German Empire 
with the Austrian code of 1803, the Bavarian 
code of 1813, and the Prussian code of 1851. 
It must be remembered, too, that these changes 
have been effected under the drift of public 
opinion in spite of the political preponderance of 
Prussia and her strong bureaucratic influence, 
which has always been exerted in favour of severe 
penalties, and shown slight consideration for 
individual frailties and criminal idiosyncrasies 
in inflicting punishment. As the stronghold of 
a stolid and supercilious squirearchy (Junker- 
thum) in Germany, Prussia has stubbornly re- 
sisted to the last every reformatory movement 
in civil and social, and especially in criminal 

A recent decision of the supreme court of the 
German Empire (pronounced in the summer of 
1894) seems to put a check upon this tendency 
by rejecting the plea of " moral insanity " in the 
extenuation of crime. As a matter of fact, how- 
ever, the question whether such a state of mind 
as " moral insanity " exists or can exist has not 
yet been settled; and so long as psychiaters do 
not agree as to the actuality or possibility of this 
anomalous mental condition, courts of justice 
may very properly refuse to take it into con- 
sideration or to allow it to exert the slightest in- 
fluence upon their judgment in the infliction of 

2o6 The Criminal Prosecution and 

judicial punishment. Moral insanity, as usually 
defined, involves a disturbance of the moral per- 
ceptions and a derangement of the emotional 
nature, without impairing the distinctively in- 
tellectual faculties. The supposed victim of this 
hypothetical form of madness is capable of 
thinking logically and often shows remarkable 
astuteness in forming his plans and executing 
his criminal purposes, but seems utterly desti- 
tute of the moral sense and of all the finer feel- 
ings of humanity, performing the most atro- 
cious deeds without hesitation and remembering 
them without the slightest compunction. In 
moral stolidity and the lack of susceptibility he 
is on a level with the lowest savage. German 
psychiaters, on the whole, are inclined to regard 
such persons, not as morally insane, but as 
morally degenerate and depraved; and German 
jurists and judges are not disposed to admit such 
vitiation of character as an extenuating cir- 
cumstance, especially at a time when criminals 
of this class are on the increase and are banded 
together to overthrow civilized society and to 
introduce an era of anarchy and barbarism. The 
decision of the German judicatory is therefore 
not reactionary, but merely precautionary, and 
simply indicates a wise determination to keep 
the administration of criminal law unencumbered 
by theories, which science has not yet fully 
established and which at present can only serve 
to paralyze the arm of retributive justice. 

Mediaeval penal justice sought to inflict the 

Capital Punishment of Animals 207 

greatest possible amount of suffering on the 
offender and showed a diabolical fertility of in- 
vention in devising new methods of torture even 
for the pettiest trespasses. The monuments of 
this barbarity may now be seen in European 
museums in the form of racks, thumbkins, inter- 
larded hares, Pomeranian bonnets, Spanish 
boots, scavenger's daughters, iron virgins and 
similar engines of cruelty. Until quite recently 
an iron virgin, with its interior full of long and 
sharp spikes, was exhibited in a subterranean 
passage at Nuremberg, on the very spot where it 
is supposed to have once performed its horrible 
functions; and in Munich this inhuman instru- 
ment of punishment was in actual use as late as 
the beginning of the nineteenth century. The 
criminal code of Maria Theresa, published in 
1769, contained forty-five large copperplate 
engravings, illustrating the various modes of 
torture prescribed in the text for the purpose of 
extorting confession and evidently designed to 
serve as object lessons for the instruction of the 
tormentor and the intimidation of the accused. 
That Prussia was the first country in Germany to 
abolish judicial torture was due, not to the pro- 
gressive spirit of the nation or of its tribunals, 
but solely to the superior enlightenment and 
energy of Frederic the Great, who effected this 
reform arbitrarily and against the will of jurists 
and judges by cabinet-orders issued in 1740 and 
1745, Crimes which women are under peculiar 

2o8 The Criminal Prosecution and 

temptation to commit, were punislied witli extra- 
ordinary severity. Thus the infanticide was 
buried alive, a small tube communicating with 
the outer air being placed in her mouth in order 
to prolong her life and her agony. A case of 
this kind is recorded in the proceedings of the 
" Malefiz-Gericht " or criminal court of Ensis- 
heim in Alsatia under the date of February 3, 
1570. In 1401, an apprentice, who stole from 
his master five pfennigs (then as now the 
smallest coin of Germany and worth about the 
fifth of a cent), was condemned to have both his 
ears cut off. Incredible barbarities of this kind 
were practised by some of the best and noblest 
men of that age. Thus Cardinal Carlo Borro- 
meo, who was pre-eminent among his con- 
temporaries for the purity of his life and the 
benevolence of his character, did not hesitate to 
condemn Fra Tommaso di Mileto, a Franciscan 
monk, to be walled up alive, because he enter- 
tained heretical notions concerning the sinful- 
ness of eating meat on Friday, and expressed 
doubts touching the worship of images, indulg- 
ences, the supreme and infallible authority of 
the pope, and the real presence in the eucharist. 
This cruel sentence, a striking illustration of the 
words of Lucretius, 

"Tantum religio potuit suadere malorum,'' 

was pronounced December 16, 1564, as follows : 
" I condemn you to be walled up in a place 

Capital Punishment of Animals 209 

enclosed by four walls, where, with anguish of 
heart and abundance of tears, you shall bewail 
your sins and grievous offences committed 
against' the majesty of God, and the holy mother 
Church and the religion of St. Francis, the 
founder of your order." A bishop, who should 
impose such a punishment now-a-days, would be 
very properly declared insane and divested of his 

Much ridicule has been cast upon the so-called 
" Blue Laws " of Connecticut on account of the 
narrowness and pettiness of their prevailing 
spirit. From our present point of view they are 
absurd and in many respects atrocious, but com- 
pared with the penal codes of that time they 
mark a great advance in human legislation. 
They reduced the number of crimes, then 
punishable in England by death, from two 
hundred and twenty-three to fourteen. In the 
mother-country, as late as the seventeenth 
century, counterfeiters and issuers of false coin 
were condemned to be boiled to death in oil by 
slow degrees. The culprit was suspended over 
the cauldron and gradually let down into it, first 
boiling the feet, then the legs and so on, until all 
the flesh was separated from the bones and the 
body reduced to a skeleton. The Puritans of New 
England, relentless as they were in their dealings 
with sectaries, were never so ruthless as this ; 
nor is it probable that they would have inflicted 
capital punishment upon their own "stubborn 

2IO The Criminal Prosecution and 

and rebellious sons," or upon persons who 
" worship any other God but the Lord God," 
had it not been for precedents recorded in laws 
enacted by a semi-civilized people thousands of 
years ago and supposed to have been dictated by 
divine wisdom. They failed to perceive the in- 
congruity of attempting to rear a democratic 
commonwealth on theocratic foundations and 
made the fatal mistake of planning their struc- 
ture after what they regarded as the perfect 
model of the Jewish Zion. 

If we compare these barbarities with the law 
recently enacted by the legislature of the state of 
New York, whereby capital punishment is to be 
inflicted as quickly and painlessly as possible by 
means of electricity, we shall be able to appre- 
ciate the immense difference between the medi- 
aeval and the modern spirit in the conception and 
execution of penal justice. 

A point of practical importance, which the 
criminal anthropologist has to consider is the 
relation of moral to penal responsibility. If 
there is no freedom of the will and the commis- 
sion of crime is the necessary result of physio- 
logical idiosyncrasies, hereditary predisposi- 
tions, brachycephalous, dolichocephalous or 
microcephalous peculiarities, anomalies of cere- 
bral convolution, or other anatomical asym- 
metries, over which the individual has no control 
and by which his destiny is determined, then he 
is certainly not morally responsible for his con- 

Capital Punishment of Animals 2 1 1 

duct. But is he on this account to be exempt 
from punishment? The vast majority of crimin- 
alists answer this question unhesitatingly in the 
negative, declaring that penal legislation is 
independent of metaphysical opinion, and that 
punishment is proper and imperative so far as it 
is essential to the protection and preservation 
of society. If the infliction of the penalties 
depriving a man of his freedom or his life is 
found to secure these ends, it is the duty of the 
tribunals established for the administration of 
justice to impose them without troubling them- 
selves about the mental condition of the culprit or 
stopping to discuss problems which belong to 
the province of the psychiater. Legal tribunals 
are not offices in which candidates for the 
insane asylum are examined or certificates of 
admission to reformatories issued, but are organ- 
ized as a terror to evil-doers in the general 
interests of society, and all their decisions should 
have this object in view. If a madman is not 
hanged for murder, it is solely because such a 
procedure would exert no deterring influence 
upon other madmen ; society protects itself, in 
cases of this kind, by depriving the dangerous 
individual of his liberty and thus preventing him 
from doing harm ; but it has no right to inflict 
upon him wanton and superfluous suffering. 
Even if it should be deemed desirable to kill him, 
the method of his removal should be such as to 
cause the least possible pain and publicity. 

212 The Criminal Prosecution and 

Here, too, the welfare of society is the determina- 
tive factor. 

This doctrine reduces confirmed criminals to 
the condition of ferocious beasts and venomous 
reptiles, and logically demands that they should 
be eliminated for precisely the same reason that 
noxious animals are exterminated, although 
neither the human nor the animal creatures are 
to blame for the perniciousness of their inborn 
proclivities and natural instincts. In the eyes of 
Courcelle-Seneuil a prison is a " kind of 
menagerie"; Naquet, the French chemist and 
senator, goes still farther, declaring that men 
are no more culpable for being criminal than 
vitriol is for being corrosive, and adding that it 
is our own fault if we put this stuff into our tea 
and are poisoned by it. The same writer main- 
tains that "there is no more demerit in being 
perverse than in being cross-eyed or hump- 
backed." In a recent lecture on criminal juris- 
prudence and biology Professor Benedikt cites 
the case of a Moravian robber and murderer, 
whose brain was found on dissection to resemble 
that of a beast of prey and who was therefore, in 
the opinion of the eminent Viennese authority, 
no more responsible for his bloody deeds than is 
a lion or a tiger for its ravages. The corollary 
to this anatomical demonstration is that one 
should treat such a man as a lion or a tiger and 
shoot him on the spot. Atavistic relapses, defect- 
ive cerebral development and other abnormities 

Capital Punishment of Animals 213 

undoubtedly occur in criminals, whose acts may 
be traced, in some degree, to these physical im- 
perfections and therefore be pathologically 
stimulated and partially necessitated by them. 
On the other hand, there are thousands of 
persons with equally small and unsymmetrical 
craniums, who do not commit crime, but remain 
respectable, safe, and useful members of society. 
Lombroso discovers in habitual malefactors a 
tendency to tattoo their bodies ; but this kind of 
cuticular ornamentation indicates merely a low 
development of the jesthetic sense, a barbarous 
conception of the beautiful or what would be 
called bad taste, and has not the slightest genetic 
or symptomatic connection with crime and the 
proclivity to perpetrate it. As a means of em- 
bellishing the exterior man it may be rude and 
unrefined, but after all it is only skin-deep, and 
does not extend to the moral character. Honest 
people of the lower classes take pleasure in dis- 
figuring themselves in this way, and soldiers and 
sailors, who are very far from furnishing the 
largest percentage of criminals, are especially 
addicted to it, simply because they find ample 
leisure in the barracks and the forecastle to 
undergo this slow and painful process of what 
they deem adornment. According to Lombroso 
criminals have as a rule thick heads of hair and 
thin beards ; but as the majority of them are com- 
paratively young, these phenomena are by no 
means remarkable. He has also found that the 

214 '^^^ Criminal Prosecution and 

hair of such persons is usually black or dark 
chestnut ; had his investigations been carried on 
in Norway and Sweden instead of in Italy, he 
would have certainly come to the conclusion that 
flaxen hair is an index of a criminal character. 

It would be difficult to deny the existence of a 
constitutionally criminal class, a persistently 
perverse element, which is the born foe of all law 
and order, at war with every form of social and 
political organization and whose permanent 
attitude of mind is that of the Irishman, who, on 
landing in New York, inquired: "Have ye a 
government here ?" and, on receiving an affirma- 
tive answer, replied, " Then I'm agin' it." 
Criminal anthropologists have been especially 
earnest in their endeavours to define this per- 
nicious type and to determine the physiological 
and physiognomical features, which characterize 
and constitute it. This line of research is 
unquestionably in the right direction, but as a 
reaction against barren scholastic speculations 
and brutal penal codes has been carried to excess 
by enthusiastic specialists and led to broad 
generalizations and hasty deductions from in- 
sufficient data. Taine's definition of man as 
" an animal of a higher species, that produces 
poems and systems of philosophy, as silk-worms 
spin cocoons and bees secrete honeycomb," 
applies with equal force to the vicious side of 
human nature. Criminal propensities, as well 
as creative powers, are the resultants of race, 

Capital Punishment of Animals 215 

temperament, climate, food, organism, environ- 
ment and other pre-natal and post-natal in- 
fluences and agencies, to which the individual 
did not voluntarily subject himself and from 
which he cannot escape. The acts, therefore, 
which he performs, whether good or evil, are as 
independent of his will as the colour of his hair 
or the shape of his nose; for while they are 
apparently volitional impulses, the will itself, 
from which they seem to proceed, is determined 
by forces as fixed and free from his control as 
are those which render him blue-eyed or snub- 

The penological application of this philo- 
sophical principle has given rise to numerous 
theories concerning the nature and origin of 
crime. Lombroso and his disciples, as we have 
already intimated, attribute it to atavism or the 
survival in the individual of the animal instincts 
and low morals of the aboriginal barbarian. 
The criminal is simply a savage let loose in a 
civilized community and ignoring the ethical 
conceptions developed by ages of culture and 
performing actions that would have seemed 
perfectly proper and praiseworthy in the eyes of 
our pre-historic ancestors. The hero of the 
Palaeolithic age is the brigand and cut-throat of 
to-day. The criminal type is nothing but a 
reversion to the primitive type of the race, and 
the representatives of this school of anthropolo- 
gists have been untiring in their efforts to dis- 

2i6 The Criminal Prosecution and 

cover physical and moral characteristics common 
to both : long arms like chimpanzees, four cir- 
cumvolutions of the frontal lobes of the brain 
like the large carnivora, small cranial capacity 
like the cave-men, canine teeth like anthropoid 
apes and a simian nose. This analogy extends 
to the eyes, the ears, the hair, and even to the 
internal organs, the liver, the heart and the 
stomach, and the diseases by which they are 
affected. It has also been observed that assas- 
sins are brachycephalous and thieves dolicho- 
cephalous. Marro maintains that in many cases 
metaphors express real facts and embody the 
common conclusions of mankind based upon 
centuries of observation : swindlers have a foxy 
look, long-fingered persons are naturally thiev- 
ish, whereas a club-fisted fellow is pretty sure to 
have a pugnacious disposition, and to be a born 
rough. Nevertheless social surroundings, edu- 
cational influences and other outward circum- 
stances are important factors, not so much in 
changing the character as in giving it direction ; 
the same cerebral constitution and consequent 
innate predisposition may make a man a hero or 
a bravo, a dashing soldier like Phil Sheridan, or 
a daring robber like Fra Diavolo, according to 
the place of his birth and the nature of his 

In common discourse we speak of atrabiliary, 
spleeny, choleric, or even stomachous persons, 
but such expressions are, in most cases, survivals 

Capital Punishment of Animals 217 

of antiquated beliefs concerning the functions of 
certain physical organs. Hypochondria has no 
more originary connection with the cartilage of 
the breastbone than with the cartilage of the 
ear. In the literal sense of the terms a large- 
brained man is not necessarily of superior intel- 
lectual power any more than a large-hearted man 
is naturally generous or a large-handed man 
instinctively grasping. So, too, the theory that 
intelligence and morality are in direct proportion 
to the size and symmetry of the encephalon is 
not sustained by facts; at least the exceptions to 
the rule are so many and so remarkable as to 
render it extremely misleading and therefore of 
little practical value as a scientific principle. 
Gambetta's brain, for example, weighed only 
1294 grammes, being fifty-eight grammes less in 
weight than that of the average Parisian, and 
was so abnormally irregular in its configuration 
as to seem actually deformed. Any physiolo- 
gist, says Dr. Manouvrier, who should come 
across such a skull in a museum, would unhesi- 
tatingly pronounce it to be that of a savage. The 
third frontal circumvolution of the left lobe of 
his brain had in the posterior part a supple- 
mentary fold said by some to be the organ of 
speech and by others to be the organ of theft; 
perhaps both combined in the ability of the 
orator to steal away men's hearts, as Antony 
says of the seductive eloquence of Brutus. The 
distinguished physiologist Bichat was an ardent 

21 8 The Criminal Prosecution and 

advocate of this doctrine of the causal connec- 
tion between cranial capacity and symmetry 
and vigorous and well-balanced mental faculties, 
but after his death his own cranium was found to 
be conspicuously lacking in the very character- 
istics which he deemed so essential to man as a 
moral and intellectual being. The late German 
professor Bischoff based his argument against 
the higher education of woman on the fact that 
the average female brain weighs only 1272 
grammes, and asserted that a person with such 
a light encephalon must be organically incom- 
petent to master the various branches of study 
taught in our universities. A post-mortem 
examination proved his own brain to be consider- 
ably inferior in weight to that of the average 

Careful investigations would doubtless furnish 
additional examples of this comical application 
of the argumentum ad hominem in refutation of 
the notion that intellectual capacity is determined 
by the bulk of the brain or the shape of the skull. 
Ugo Foscolo, one of the most celebrated of 
modern Italian poets, had a cranium, which, 
according to this standard of appreciation, ought 
to have belonged to an idiot. On the other 
hand, the brain of the " Hottentot Venus," 
examined by Gratiolet, far surpassed in the 
symmetry of both hemispheres and the perfection 
of its circumvolutions the normal brains of the 
Caucasian race. The same phenomenon has 

Capital Punishment of Animals 219 

been observed, although in a less striking 
manner, occasionally in cretins and quite often 
in criminals. Character is the resultant of a 
multitude of combined forces, the great majority 
of which are still unknown and perhaps unknow- 
able quantities. The impulse given by each 
must be exactly estimated in order to predeter- 
mine the joint effect. No factor which con- 
tributes to its formation must be overlooked, and 
the acceptance of any one of them, however im- 
portant it may seem to be, as the basis on which 
to reform and reconstruct our penal legislation, 
would be premature and pernicious. This 
hobby-horsical tendency, which is the vice of 
every specialist, is now the besetting sin of 
criminal anthropologists, each of whom is firmly 
convinced that he can reach the goal only on his 
own gar ran. 

" The more advanced criminalists," says Pro- 
fessor Von Kirchenheim, " are becoming 
thoroughly convinced that the penal codes of 
to-day do not correspond to the criminal world 
of to-day. No science has remained so deeply 
rooted and grounded in scholasticism as juris- 
prudence; and this evil is most clearly per- 
ceptible in the province of criminal law. The 
necessity of a change in our penal legislation 
has already made itself widely felt. The contest 
with crime must now be carried on in a differ- 
ent manner from what it was when men waged 
war with bows and arrows; modern criminality 

220 The Criminal Prosecution and 

must be fought, as it were, with repeating 
rifles." In other words, we can never suppress 
crime by meeting it with bludgeons and boomer- 
angs and other rude implements of barbarous 
warfare, but must encounter it with the finest 
and most effective weapons of precision, which 
the armoury of modern science can put into our 
hands. Society has outgrown the crude concep- 
tion of punishment as mere retaliation or retri- 
bution incited by revenge. There is no doubt 
that even in the most enlightened countries, 
penology as a science is still in its infancy, and 
is only just beginning to feel the uncomfortable 
girding of its scanty swaddling-bands and 
blindly kicking itself free from them. That this 
first emancipatory effort should be somewhat 
clumsy, and occasionally attended by comical 
casualties and even serious disasters, lies in the 
very nature of the case. It is evident, too, that 
the antiquated and utterly irrational methods now 
employed for the suppression of crime tend 
directly to increase it. It is the aim of the posi- 
tive, in distinction from the classical school of 
criminalists to discover the real causes of criminal 
actions, and thus to endeavour to eradicate or 
neutralize them. A casual criminal, for example, 
whom external conditions, accidental circum- 
stances, sudden temptations or bad influences 
have led astray, should not be treated in the 
same manner, although guilty of the same overt 
act, as the habitual or constitutional criminal, 

Capital Punishment of Animals 221 

whose wrong-doing arises from a diseased, ill- 
balanced or undeveloped mental or physical 
organization, and is therefore an inborn and per- 
haps irresistible proclivity. The latter is hardly 
responsible for his conduct, and the possibility 
of reforming him is slight. The only proper 
thing to do with such a culprit is to render him 
personally harmless to society either by death 
or perpetual incarceration, and to prevent him 
from propagating his kind. The law of the sur- 
vival of the fittest through selection suggests 
as its necessary sequence the suppression of the 
unfittest through sterilization. Nature has her 
own effective and relentless method of attaining 
this desirable result; but man is constantly 
thwarting her beneficent purposes by all sorts of 
pernicious schemes originating in factitious 
sentimentalism and maudlin sympathy, which 
under the plea of philanthropy tend to foster and 
perpetuate moral monstrosities to the discom- 
fort and detriment of civilized society and the 
permanent deterioration of the race. To sen- 
tence persons of this class to eight or ten years' 
imprisonment and then to turn them loose again 
as a constant source of peril to mankind, is the 
greatest folly that any tribunal can possibly com- 
mit. It is a wrong done both to the criminal 
and to the community of which he is a member. 
The penalties imposed by the law should be de- 
termined not solely by the enormity of the crime, 
but chiefly by the character of the criminal. 

222 The Criminal Prosecution and 

Paradoxical as such a conclusion may be, it is 
nevertheless a strictly logical deduction from the 
premises, that the more corrupt he is by his 
physical constitution and therefore the less cul- 
pable he is from a moral point of view, the more 
severe should be the sentence pronounced upon 
him. Where the vicious propensity is in the 
blood and beyond the reach of moral or penal 
purgations, the only safety is in the elimination 
of the individual, just as the only remedy for a 
gangrened limb is amputation. We ridicule 
ancient and mediaeval courts of justice for prose- 
cuting bugs and beasts, but future generations 
will condemn as equally absurd and outrageous 
our judicial treatment of human beings, who can 
no more help perpetrating deeds of violence, 
under given conditions, than locusts and cater- 
pillars can help consuming crops to the injury 
of the husbandman, or wild beasts can help 
rending and devouring their prey. It is also 
interesting to know that in former times the 
animal was not punished capitally because it 
was supposed to have incurred guilt, but as a 
memorial of the occurrence, or in the language 
of canonical law : Non propter culpam sed 
propter memoriam facti pectis occiditur. It was 
put to death not because it was culpable, but 
because it was harmful ; and this is the ground 
on which the radical wing of criminal anthro- 
pologists would repress and eliminate a vicious 
person without regard to his mental soundness 

Capital Punishment of Animals 223 

or moral responsibility; to use Garofalo's meta- 
phor he is a microbe injurious to the social 
organism and must be destroyed. 

Lombroso carries his theory of the innateness, 
hereditability and ineradicableness of criminal 
propensities so far as to afHrm that " education 
cannot change those who are born with perverse 
instincts," and to despair of correcting an ob- 
stinate bias of this sort even in a child. In 
accordance with this idea his disciple, Le Bon, 
proposes to " deport to distant countries all pro- 
fessional criminals or persistent relapsers into 
vice (recidivistes) together with their posterity," 
and would thus practically revive the barbarous 
principle of visiting the sins of the fathers upon 
the children, although he does not regard their 
conduct as sinful in the sense of being a volun- 
tary transgression of the moral law, but as the 
result of a transmitted taint and organic defici- 
ency, for which the individual is in no wise 
responsible. It is hardly necessary to add that 
this doctrine is not sustained by the statistics of 
reformatories, houses of refuge and similar in- 
stitutions, which have now taken the place of the 
prison and the scaffold in the case of juvenile 

Those who look upon crime as a pathological 
phenomenon find a striking illustration and 
strong confirmation of their views in violations 
of the law committed under the impulse of 
hypnotic suggestion. Some maintain that all 

224 The Criminal Prosecution and 

acts originating in this manner are purely auto- 
matic, and acquit the person performing them of 
all moral and legal responsibility, since they 
express the will and purpose of the hypnotizer, 
who alone should be held accountable. Others 
hold that the man, who consents to be hypno- 
tized and thus voluntarily surrenders his will- 
power and permits himself to be used as an 
instrument for the perpetration of crime, should 
be punished for his offences and not allowed to 
go scot-free by pleading the force majeure of 
hypnotic suggestion. The liability to punish- 
ment, it is justly argued, would be a safeguard 
to society by putting a wholesome and effective 
check on hypnotic experimentations. There is 
at least no reason why the hypnotized subject 
should not be called to account for accomplicity. 
Any passion may become automatic and irre- 
sistible by long indulgence and assiduous culti- 
vation, so that the man is overmastered by it 
and cannot help yielding to it under strong tempt- 
ation ; but the victim of a vicious habit has no 
right to urge the force of an evil propensity in 
exculpation of himself. The inborn or inveterate 
badness of a man's character may explain, but 
cannot excuse his bad conduct in the impartial 
and inexorable eye of justice. So, too, he who 
sins against his own worthiness and dignity as 
a rational being by choosing to annul his power 
of self-determination as a voluntary agent and 
become a helpless tool in the hands of another. 

Capital Punishment of Animals 225 

ought not wholly to escape the consequences of 
his folly. That the hypnotizer should be made 
fully responsible for the realization of his sug- 
gestions, no representative of either the positive 
or classical school of criminalists would probably 
deny. To take a man's life by means of hypnotic 
suggestion is as truly subornation to murder as 
to hire an assassin to plunge a dagger into his 

As regards hypnotism itself, it would be 
strange enough if we should discover in it the 
real scientific basis of witchcraft, and modern 
legislation should prosecute and punish hypno- 
tizers as mediaeval legislation prosecuted and 
punished sorcerers. The sympathetic influence 
of a morbidly imaginative mind upon the body 
in directing the currents of nervous energy and 
increasing the flow of blood towards particular 
points of the physical organism, so as to produce 
stigmata and similar abnormal phenomena, has 
long been recognized as an adequate explanation 
of much mediaeval and modern miracle-monger- 
ing. It would now seem as if hypnotism, or 
the magnetic influence of one man's will upon 
another man's mind and body were destined 
to furnish the key to still greater marvels and 
reveal the true nature and origin of what has 
hitherto passed for divine inspiration or diabolical 
possession. Charcot, Renaut, Fowler and other 
eminent neuropathologists have conclusively 
shown that certain forms of hysteria sometimes 

226 The Criminal Prosecution and 

produce tumors, ulcers, muscular atrophy, para- 
lysis of the limbs and like affections apparently 
organic, but really nervous. In such cases any 
kind of faith-cure, in which the patient has con- 
fidence, prayer, the laying on of hands, the water 
of Lourdes or of St. Ignatius, medals of St. 
Benedict, scapularies of the Virgin, seraphic 
girdles, a pilgrimage to the shrine of a saint or 
contact with a holy relic may prove far more 
efficacious than drugs and are therefore recom- 
mended by priests and occasionally even pre- 
scribed by physicians, who are far too en- 
lightened to regard such healings as miraculous 
or supernatural. The success of scientific re- 
search in disclosing the physical basis of intel- 
lectual life is gradually undermining the founda- 
tions of so-called spiritualism, and rendering it 
more and more impossible to mistake symptoms 
of chlorosis and hysterical weakness for spiritual 
gifts and signs of God's special favour. Sickly 
women are no longer treated as seeresses and 
their vague and incoherent sayings treasured as 
oracular utterances. 

One of the chief difficulties encountered by 
those who seek to frame and administer penal 
laws on psycho-pathological principles arises 
from the fact that no one has ever yet been able 
to give an exact and adequate definition of in- 
sanity. However easy it may be to recognize 
the grosser varieties of mental disorder, it is 
often impossible even for an expert to detect it 

Capital Punishment ot Animals 227 

in its subtler forms, or to draw a hard and fast 
line between sanity and insanity. An eminent 
alienist affirms that very few persons we meet 
in the counting-room, on the street or in society, 
or with whom we enjoy pleasant intercourse at 
their firesides, are of perfectly sound mind. 
Nearly every one is a little touched ; some mole- 
cule of the Brain has turned into a maggot; there 
is some topic that cannot be introduced without 
making the portals of the mind grate on their 
golden hinges, — some point at which we are 
forced to say, — 

" O, that way madness lies ; let me shun that." 

It is possible, however, that this very opinion 
may be a fixed idea or symptomatic eccentricity 
of the alienist himself. The theory that all men 
are monomaniacs may be merely his peculiar 
monomania. Still there is unquestionably this 
much truth in it, that nearly every person has 
developed some faculty at the expense of the 
others and thus destroyed his mental equilibrium. 
Every tendency of this kind, which is not checked 
or balanced and in some way rounded off in the 
growth of the character, becomes morbidly strong 
and leads to a sort of insanity. The specialist 
is always exposed to this danger of growing into 
a man of one idea; his monomania may be in 
the direction of valuable research or in the pur- 
suit of a foolish whim, resulting in useful in- 
ventions or dissipating itself in chimerical pro- 

228 The Criminal Prosecution and 

jects ; it may be a harmless crotchet or a vicious 
proclivity, philanthropic or misanthropic; it is, 
nevertheless, a bent or bias and so far a deviation 
from the norm of perfect intellectual rectitude. 

A madman, says Coleridge, is one who " mis- 
takes his thoughts for person and things." 
But here the frenzies of the lunatic intrench on 
the functions of the poet, who " of imagination 
all compact, ' ' takes his fancies for realities, 

" Turns them to shapes, and gives to airy nothing 
A local habitation and a name." 

Coleridge's definition includes also the mytho- 
poeic faculty, the power of projecting creations 
of the mind and endowing them with objective 
actuality and independent existence, which in 
the infancy of the race peopled heaven and earth 
with phantasms, and still croons over cradles 
and babbles of brownie and fairy in nurseries 
and chimney-corners. No progress of science 
can wholly eradicate this tendency to mytholo- 
gize. In the absence of better material, it seizes 
upon the most prosaic and practical improve- 
ments in modern household life and clothes 
them with poetry and legend. The imaginative 
child of New York or Boston, after feeding the 
mind on fairy tales, converts the ordinary gas- 
pipe into the den of a dragon, which puts forth 
its fiery tongue when the knob is turned. The 
sleeping figure of a virgin carved in marble and 
copied from an ancient Greek sculpture of 
Ariadne, which reposes on an arch in the park 

Capital Punishment of Animals 229 

of Sans-souci at Potsdam, has been transformed 
by the popular imagination into an enchanted 
princess, who will awake as soon as a horseman 
succeeds in springing over it three times with his 
steed. So vivid is the belief in this story that 
many good Christians never pass through the 
archway without making the sign of the cross 
as a prophylactic against possible demonic in- 
fluences. The Suabian peasant still believes 
that the railroad is a device of the devil, who is 
entitled by contract to a tollage of one passenger 
on every train ; he is in a constant state of anxiety 
lest his turn may come on the next trip and 
always wears a crucifix as the best means, so 
far as his own person is concerned, of cheating 
the devil of his due. As the Church has uni- 
formly consigned great inventors to the infernal 
regions, his Satanic Majesty could have never 
had any lack of ingenious wits among his sub- 
jects capable of advising him in such matters. 

An important consideration, which did not 
disturb the minds of mediseval jurists, nor stay 
the hand of strictly retributive justice, is the 
fact, now generally admitted, that crimes, like 
all other human actions, are subject to certain 
fixed laws, which seem to some extent to remove 
them from the province of free will and the 
power of individual determination. Professor 
Morselli has shown statistically that suicide, 
which we are wont to consider a wholly volun- 
tary act, is really dependent upon a great variety 

230 The Criminal Prosecution and 

of circumstances, over which man has no control : 
climate, seasons, months, days, state of crops, 
domestic, social, political, financial, economical, 
geographical and meteorological conditions, sun, 
moon, and stars all work together, impelling 
him to self-destruction or keeping him from it. 
Suicide increases when the earth is in aphelion, 
and decreases when it is in perihelion. Race 
and religion are also important factors in ag- 
gravating or mitigating the suicidal tendency, 
Germans and Protestants being most, and 
Semitic nations and Mohammedans, including 
those of Aryan and African blood, being least 
addicted to it. Suicide is, in fact, the resultant 
of a vast number of complicated and far-reaching 
forces, which we can neither trace nor measure, 
and of which the victims themselves are for the 
most part unconscious. To a very considerable 
degree, it is a question of environment in the 
broadest sense of the term; "an effect," says 
Morselli, "of the struggle for existence and of 
human selection, working according to the laws 
of evolution among civilized peoples." What 
is proved to be true of self-slaughter is equally 
so of murder and every other crime. 

An additional reflection, that " must give us 
pause " in the presence of crime, is that some 
of the chief causes operating to produce the 
manifold evils afiflicting society and threatening 
to subvert it, are due in a great measure to the 
present egoistic organization of our social and 

Capital Punishment of Animals 231 

industrial system, the selfish and unscrupulous 
power of wealth directed and stimulated by 
superior intelligence and energy, on the one 
hand, and the brute forces of ignorance driven 
to despair by the disheartening and debasing 
pressure of poverty, on the other hand, arrayed 
against each other in fierce and bitter conflict. 
Much of the individual viciousness, which 
society is required to punish, springs directly 
from the unjust and injurious conditions of life, 
which society itself has created. It is the per- 
ception of this fact that disturbs the conscience, 
puzzles the will, and palsies the arm of the 
modern law-giver and executor of justice. 

Mediceval legislators were not restrained by 
any scruples of this sort; they regarded the 
criminal, both human and animal, as the sole 
author of the crime, ascribing it simply to his 
own wickedness and never looking beyond the 
mere actual deed to the social influences, psychi- 
cal and physical characteristics and inherited 
qualities, that impelled him with irresistible force 
to do iniquitous things. This was doubtless a 
very narrow, superficial and utterly unphiloso- 
phical view of human action and responsibility ; 
the danger now-a-days lies in the opposite ex- 
treme, in the tendency to pity the vicious indi- 
vidual as the passive product and commiserable 
victim of unfortunate conditions, and while en- 
gaged in the laudable attempt to improve these 
conditions by working out broad and benevolent 

232 The Criminal Prosecution and 

plans of permanent relief and reformation for 
the future amelioration of society, to relax penal- 
ties and to fail in providing by sufficiently 
stringent measures for its present security. 
Tribunals have only to do with individual 
criminals as their conduct affects the general 
welfare. In what manner their characters have 
been formed by ancestral agencies and other 
predispositions may be an interesting study to 
the psychologist and the sociologist, but does 
not concern the judge or the jurist in the dis- 
charge of their official functions. The problem 
of crime is therefore a very simple one, so far 
as the criminal lawyer has to deal with the con- 
crete case, but very complex, when we look 
beyond the overt act to its genesis in the life of 
the race. The proper administration of penal 
justice is weakened and defeated by mixing itself 
up with psycho-pathological inquiries wholly 
foreign to it. 

It is a curious coincidence that the theory of 
evolution, in its application to man's free agency, 
should arrive at essentially the same conclusion 
as the theology of Augustine and Calvin. Pre- 
destination, which the suffragan of Hippo and 
the Genevan divine attributed to the arbitrary 
decrees of God, evolution traces to the influences 
of heredity upon individuals, predetermining 
their bodily and mental constitutions. There is, 
however, a wide difference between these two 
doctrines in their workings. From the clutch 

Capital Punishment of Animals 233 

of a deity "willing to show his wrath and to 
make his power known," no man can by any 
effort of his own effect his escape. Against this 
imperious and general sentence of damnation no 
process of development, no upward striving, no 
individual initiative can be of any avail. Evolu- 
tion, on the contrary, promises a gradual release 
from low ancestral conditions — the original sin 
of the theologians— and opens up to the race a 
way of redemption, not only through natural 
selection and spontaneous variations resulting in 
higher and nobler types of mankind, but also 
through the modification of inherited traits by 
careful breeding, thorough discipline and the 
conscious and constant endeavour of every human 
being to improve and perfect himself. Salva- 
tion through the "election of grace" is by no 
means identical with salvation through the " sur- 
vival of the fittest." The righteousness of those 
whom God has chosen as " the vessels of mercy 
whom he had afore prepared unto glory," may 
be and probably is "as filthy rags " ; evolution- 
ary science, on the contrary, recognizes and 
appreciates redeemable qualities by select- 
ing, strengthening and propagating them and 
by this means aims ultimately to redeem the 
world. It imposes upon each man the duty and 
necessity of working out his own salvation, not 
with fear and trembling at the prospect of meet- 
ing an angry deity, but with hope and cheerful- 
ness, knowing that the beneficent forces of nature 

234 The Criminal Prosecution and 

are working in him, as in all forms of organic 
life, in obedience to the laws of development, 
towards the goal of his highest possible perfec- 
tion by gradually eliminating the heirloom of 
the beast and the savage, and letting the instincts 
of the tiger and the ape slowly die within him. 
" The best man," said Socrates, "is he who 
seeks most earnestly to perfect himself, and the 
happiest man is he who has the fullest conscious- 
ness that he is perfecting himself." This utter- 
ance of the Athenian sage expresses the funda- 
mental principle of the ethics of evolution, 
according to which there can be no greater sin 
than the neglect of self-culture, holding, as it 
does, in the province of science a place corre- 
sponding in importance to that which the un- 
pardonable sin against the Holy Ghost holds in 
the province of theology. No one is blamable 
for inheriting bad tendencies; but every one is 
blamable for not striving to eradicate them. If 
evil impulses prove to be irresistible, then society 
must step in and render them harmless by de- 
priving of life or liberty the unfortunate victims 
of such propensities. 

Again, if the mental and moral qualities of 
the lower animals differ from those of man, not 
in kind, but only in degree, and the human 
mammal is descended from a stock of primates, 
to which apes and bats belong, and dogs and 
cats and pigs are more remotely akin, it is dif- 
ficult to determine the point at which moral and 

Capital Punishment of Animals 235 

penal responsibility ceases in the descending, 
or begins in the ascending scale of being. That 
beasts and birds and even insects commit acts 
of violence, which in human agents would be 
called crimes, and which spring from the same 
psychical causes and, as we have shown in 
another work (Evolutionary Ethics and Animal 
Psychology. New York : D. Appleton and 
Co.; London: William Heinemann, 1898), are 
punished by the herd, the flock or the swarm 
in a more or less judicial manner, is undeniable. 
The zoopsychologist Lacassagne divides the 
criminal offences of animals into six classes or 
categories, the ground of the classification being 
the motives which underlie and originate them. 
The lowest or most rudimentary motive to crime 
in both man and beast is hunger, the operation 
of which is seen in the spectacle of one savage 
killing another in order to get sole possession 
of a wild beast slain by them in common, and 
in the ferocity of two dogs fighting over a bone. 
Perhaps the great majority of crimes afflicting 
society at the present time have their origin in 
this source. Next to the desire of the individual 
to preserve himself comes the desire to preserve 
his kind; this motive is commonly considered 
a more generous impulse and is praised as par- 
ental affection. This earliest and most primitive 
of altruistic emotions is exceedingly strong in 
the lower animals, especially in those whose off- 
spring are comparatively helpless in infancy, as 

236 The Criminal Prosecution and 

is the case with all species of monkeys, and 
manifests itself not only in tender care of the 
young, but also in theft, robbery, and other acts 
of violence committed for their sake. The wanton 
love of destruction characterizes both beasts and 
men ; there are roughs and vandals among the 
former as well as among the latter, who take 
a malicious delight in doing injury to persons 
and property. Vanity and the desire of " show- 
ing off " play no small part in the wrongdoings 
of apes and apish men and women. Other in- 
centives to crime are ambition, sexual passion, 
gregariousness, the concentrated egoism and 
merciless brutality of a crowd even in the most 
civilized communities, the outrages so recklessly 
perpetrated by what a French jurist, M. Tarde, 
calls " that impulsive and maniac beast, the 
mob." It may be remarked, too, that the kinds 
of criminal actions, which civilization tends to 
diminish among men, domestication tends to 
diminish among the lower animals. 

If these statements be correct, why should not 
animals be held penally responsible for their 
conduct as well as human beings? There are 
men apparently less intelligent than apes. Why 
then should the man be capitally punished and 
the ape not brought to trial ? And if the ape 
be made responsible and punishable, why not the 
dog, the horse, the pig, and the cat? In other 
words, does evolutionary criminology justify the 
judicial proceedings instituted by mediaeval courts 

Capital Punishment of Animals 237 

against animals or regard the typical human 
criminal as having in this respect no supremacy 
over the beast? Does modern science take us 
back to the barbarities of the Middle Ages in 
matters of penal legislation, and in abolishing 
judicial procedure against quadrupedal beasts is 
it thereby logically forced to stay the hand of 
justice uplifted against bipedal brutes ? The 
answer to these questions is unhesitatingly 
negative. Zoopsychology is the key to an- 
thropopsychology and enables us to get a clearer 
conception of the genesis of human crime by 
studying its manifestations in the lower creation ; 
we thus see it in the process of becoming, acquire 
a more correct appreciation of its nature and 
origin and learn how to deal with it more ration- 
ally and effectively in bestial man. 

Another point discussed by Plato and still 
seriously debated by writers on criminal juris- 
prudence is whether punishment is to be inflicted 
quia ■peccatum est or ne peccetur; in other 
words, whether the object of it should be retri- 
butive or preventive. The truth is, however, 
that both of these motives are operative and as 
determining causes are so closely intermixed 
that it is impossible to separate them. As the 
distinguished criminalist. Professor Von Liszt, 
has remarked one might as well ask whether a 
sick man takes medicine because he is ill or in 
order to get well. The penalty is imposed in 
consequence of the commission of a crime and 

238 The Criminal Prosecution and 

also for the purpose of preventing a recurrence 
of it, and is therefore both retributory and re- 
formatory. Punishment is defined by Laas as 
" ethicized and nationalized revenge, exercised 
by the state or body politic, which is alone im- 
partial enough to pronounce just judgments and 
powerful enough to execute them." Civiliza- 
tion takes vengeance out of the hands of the 
injured individual and delegates it to the com- 
munity or commonwealth, which has been out- 
raged in his person. The underlying principle, 
however, is, in both cases, the same, and the idea 
of justice, as administered by the community, 
does not rise above that entertained by the aggre- 
gate or average of individuals composing it. 

The recent growth of sociology and especially 
the scientific study of the laws of heredity thus 
tend, by exciting an intelligent interest in the 
psychological solution of such questions, to 
render men less positive and peremptory in their 
judicial decisions. The intellectual horizon is 
so greatly enlarged and so many possibilities 
are suggested, that it is difficult for conscien- 
tious persons, strongly affected by these specula- 
tions and honestly endeavouring to make an 
ethical or penal application of them, to come to 
a prompt and practical conclusion in any given 
case. The voice of decision loses its magis- 
terial sternness and 

" the native hue of resolution 
Is sicklied o'er with the pale cast of thought." 

Capital Punishment of Animals 239 

If it be true, as Mr. Galton affirms, that legal 
ability is transmitted from father to son, criminal 
proclivity may be equally hereditary, and the 
judge and the culprit may have reached their 
relative positions through a line of ancestral 
influences, working according to immutable and 
inevasible laws of descent. 

Schopenhauer maintained the theory of 
" responsibility for character," and not for 
actions, which are simply the outgrowth and 
expression of character. The same act may be 
good or bad according to the motives from which 
it springs. This distinction is constantly made 
both in ethics and in jurisprudence, and deter- 
mines our moral judgments and judicial deci- 
sions. Yet the chief elements, which enter into 
a person's character and contribute to its forma- 
tion, lie beyond his control or even his conscious- 
ness, and in many cases have done their work 
before his birth. Responsibility for character 
is equivalent to responsibility for all the in- 
herited tendencies and prenatal influences, of 
which character is the resultant, and leads at last 
to the theological dogma of the imputation of 
sin all the way back to Adam as the federal head 
of the race, a doctrine which Schopenhauer 
would be the first to repudiate. Besides, evil 
propensities and criminal designs are recogniz- 
able and punishable only when embodied in 
overt acts. The law cannot deprive a man of 
life or liberty because he is known to be vicious 

240 The Criminal Prosecution and 

and depraved, although the police in the exer- 
cise of its protective and preventive functions 
and as a means of providing for the general 
security, may feel in duty bound to keep a watch- 
ful eye on him and to make an occasional raid 
on the dens and " dives " haunted by him and 
his kind. There are also instances on record, 
in which it is impossible to trace the culpable act 
to any marked corruption of character. 

A rather remarkable illustration of this fact is 
furnished by the trial of Marie Jeanneret, which 
took place at Geneva in Switzerland in 1868 and 
which deservedly ranks high among the causes 
celebres of the present century, both as a legal 
question and a problem of psycho-pathology. 
[At the time when this trial occurred, the writer 
directed attention to the peculiar and perplex- 
ing features of the case in The Nation for 
January 7, 1869, p. ii.] Dumas in his novel 
Le Comte de Monte Christo, describes the char- 
acter and career of a young, refined and beauti- 
ful woman, moving in the best circles of Parisian 
society, and yet poisoning successively six or 
seven members of her own family ; but even the 
most imaginative and audacious of French 
romancers did not dare to delineate such crimin- 
ality without ascribing it to some apparently 
adequate motive. Madame de Villefort ad- 
ministered deadly potions to her relatives under 
the impulse of a morbidly intense maternal love, 
which centred all her moral and intellectual 

Capital Punishment of Animals 241 

faculties on the idea of making her son the sole 
heir to a large estate. Affection and social 
ambition for her offspring incited her to the 
murder of her kin. But the invention, which 
created such a monster of sentimental depravity, 
has been far surpassed in real life by the exploits 
of Marie Jeanneret, a Swiss nurse, who took 
advantage of her professional position to give 
doses of poison to the sick persons confided to 
her care, from the effects of which seven of them 

In the commission of this monotonous series 
of diabolical crimes, the culprit does not seem to 
have been animated either by animosity or 
cupidity. On the contrary, she always showed 
the warmest affection for her victims, and nursed 
them with the tenderest care and the most 
untiring devotion, as she watched the distressful 
workings of the fatal draught ; nor did she derive 
the slightest material benefit from her course of 
conduct, but rather suffered considerable 
pecuniary loss by the death of her patients. The 
testimony of physicians and alienists furnished 
no evidence of insanity, nor did she show any 
signs of atavistic reversion, physiological 
abnormity or hereditary homicidal bent. Mono- 
maniacs usually act fitfully and impulsively; 
but Marie Jeanneret always manifested the 
coolest premeditation and self-possession, never 
exhibiting the least hesitation or confusion, or 
the faintest trace of hallucination, but answered 

242 The Criminal Prosecution and 

with the greatest clearness and calmness every 
question put by the president of the court. Even 
M. Turrettini, the prosecuting attorney, in 
presenting the case to the jury, was unable to 
discover any rational principle on which to 
explain the conduct and urge the conviction of 
the. accused; and after exhausting the common 
category of hypotheses and showing the inade- 
quacy of each, he was driven by sheer stress of 
inexplicability to seek a motive in " I'espece de 
volupte qu'elle eprouverait a commettre un 
crime," or what, in less elegant, but more 
vigorous Western vernacular, would be called 
"pure cussedness." Not only was such an 
explanation merely a circumlocutory confession 
of ignorance, but it was wholly inconsistent with 
the general character of the indictee. 

Indeed, the persistent and pitiless perpetration 
of this one sort of crime by this woman, under 
circumstances which should have excited com- 
passion in the hardest human heart, seems more 
like the working of some baneful and irrepres- 
sible force in nature, or the relentless operation 
of a destructive machine, than like the voluntary 
action of a free and responsible moral agent. 
M. Zurlinden, the counsel for the defendant, 
dwelt with emphasis upon this mysterious phase 
of the case and thus saved his client from the 
scaffold. The Jury, after five hours' delibera- 
tion, rendered a verdict of " Guilty, with ex- 
tenuating circumstances," as the result of which 

Capital Punishment of Animals 243 

the accused was sentenced to twenty years' hard 
labour. As a matter of fact, there were no cir- 
cumstances of an extenuating character except 
the utter inability of the jurors to discover any 
motive for the commission of such a succession 
of cold-blooded atrocities. 

After fifteen years' imprisonment the convict 
died. During this whole period of incarceration 
she not only showed great intelligence and strict 
integrity, but was also remarkably kind and 
helpful to all with whom she came in contact. 
She instructed her fellow-convicts in needle-work 
and fine embroidery, loved to attend them in 
sickness, and by her general influence raised 
very perceptibly the tone of morals in the work- 
house. If it be true, as asserted by Mynheer 
Heymanns, one of the latest expounders of 
Schopenhauer's ethics, that "a man is respons- 
ible for his actions only so far as his character 
finds expression in them, and is to be judged solely 
by his character," what shall be done in cases 
like the afore-mentioned, in which the criminal 
conduct is exceptional, and so far from being 
symptomatic of the general character stands out 
as an isolated and ugly excrescence and appall- 
ing abnormity ? According to this theory crime 
is to be punished only when it is the natural 
outgrowth and legitimate fruit of the criminal's 
individuality and society is to be left unpro- 
tected against all maleficence not traceable to 
such an origin. 

244 The Criminal Prosecution and 

There can be hardly any doubt that the Swiss 
nurse was a toxicomaniac, and that she had 
become infatuated with poisons, partly by watch- 
ing their effects on her own system, and partly 
by reading about their properties in medical and 
botanical works, to the study of which she was 
passionately devoted. Did not Mithridates, if 
we may believe the statements of Galen, experi- 
ment with poisons on living persons? Why 
should she not follow such an illustrious ex- 
ample, especially as she never hesitated to take 
herself the potions she administered to others; 
the only difference being that habit had made 
her, like the famous King of Pontus, proof 
against their venom. She often attempted 
analyses of these substances, and in one instance 
was severely burned by the bursting of a crucible, 
in which she was endeavouring to obtain atro- 
pine from atropa belladonna or deadly night- 
shade. It was this terrible poison, which is 
endowed with exceedingly energetic qualities and 
is therefore used by physicians with extreme 
precaution, that seems to have had an irresistible 
fascination for her, growing into an insane desire 
to discover and test its occult virtues. She had 
read and heard of zealous scientists and illus- 
trious physicians, who had experimented on 
themselves and on their disciples, and become 
the benefactors of mankind; why then should 
she not adopt the same method in the pursuit of 
truth and use for this purpose the physiological 

Capital Punishment of Animals 245 

material which her profession placed in her 
hands ? 

However preposterous such reasoning on her 
part may appear to us and however vaguely and 
subconsciously the mental process may have 
been carried on, it offers the only theory 
adequate to explain all the facts and to account 
for the almost incredible union of contradictory 
traits in her character. The enthusiasm of the 
experimenter overbore in her the native sym- 
pathy of the woman. She observed the writh- 
ings of her poisoned victims with as " much 
delight" as Professor Mantegazza confesses he 
felt in studying the physiology of pain in the 
dumb animals "shrieking and groaning" on 
his tormentatore. "The physiologist," says 
Claude Bernard, "is no ordinary man. He is 
a savant, seized and possessed by a scientific 
idea. He does not hear the cries of suffering 
wrung from racked and lacerated creatures, nor 
see the blood which flows. He has nothing 
before his eyes but his idea and the organisms, 
which are hiding the secrets he means to dis- 
cover." Marie Jeanneret was a fanatic of this 
kind. She, too, was a woman possessed with 
ideas as witches were once supposed to be pos- 
sessed with devils. Had she prudently confined 
her experiments to the torture of helpless ani- 
mals, she might perhaps have taken rank in the 
scientific world with Brachet, Magendie and 
other celebrated vivisectors, and been admitted 

246 The Criminal Prosecution and 

with honour to the Academy, instead of being 
thrust ignominiously into a penitentiary. 

The assertion as regards any supposed case of 
madness, that "there's method in it," is 
popularly assumed to be equivalent to a denial of 
the existence of the madness altogether. But 
psycho-pathology affords no warrant for such an 
assumption. An individual, who commits 
murder under the impulse of morbid jealousy, 
pecuniary distress, social rancour, political or 
scientific fanaticism, or any other form of mono- 
mania, is not the less the victim of a mind 
diseased because he shows rational forethought 
in planning and executing the deed. His mental 
faculties may be perfectly healthy and normal in 
their operation up to the point of derangement, 
from which the fatal act proceeds. No chain is 
stronger than its weakest link ; and this is equally 
true of physical and psychical concatenations. 
Under such circumstances the sane powers of 
the mind are all at the mercy of the one fault 
and are made to minister to this single infirmity. 

According to English law a man is irre- 
sponsibly insane, when he has "such defect of 
reason from disease of the mind as not to know 
the nature and quality of the act he was doing, 
or, if he did know it, that he did not know he was 
doing what was wrong." This definition is very 
incomplete and covers only the most obvious 
forms of insanity ; perhaps in the great majority 
of cases there is no " defect of reason " nor 

Capital Punishment of Animals 247 

" disease of mind "in tlae proper sense of these 
terms, but only a disturbance of the emotions or 
perversion of the will originating in physical 
disorder. Besides, it is undeniable that animal 
intelligence is capable of distinguishing between 
right and wrong and of comprehending what 
is punishable and what is not punishable. In 
general when a dog does wrong, he knows that 
he is doing wrong; and a monkey often takes 
delight in doing what is wrong simply because 
he knows it is wrong. If a monkey gets angry 
and kills a child, he obeys the same vicious pro- 
pensity that impels a brutal man to commit 
murder. There is no greater " defect of reason " 
in one case than in the other. Why then should 
the monkey be summarily shot or knocked on the 
head, and the man arrested, tried, convicted and 
hanged by the constituted authorities? Simply 
because such a public prosecution and execution 
would not exert any influence whatever in pre- 
venting infanticide on the part of other monkeys ; 
if it could be shown that a formal trial of the 
monkey would produce this salutary effect, then 
it certainly ought not to be omitted. The recent 
attempt to modify the English law so as to render 
all " certifiably insane " persons irresponsible for 
their actions, would result in the abolition of all 
punishment for crime, since many physicians 
regard every criminal as insane and would not 
hesitate to certify their opinion to the proper 

248 The Criminal Prosecution and 

It is no easy task now-a-days for penal legisla- 
tion to keep pace with psychiatral investigation 
and to adjust itself to the wide range and nice 
distinctions of modern psycho-pathology; nor is 
it necessary to do so. Salus socialis suprema lex 
esto. Society is bound to protect itself against 
every criminal assault, no matter what its source 
or character may be. This is the ultimate object 
not only of the prison and the scaffold, but also 
of all reformatories for juvenile offenders and 
vagabonds, who by judicious correction and 
instruction may perhaps be brought to amend 
their ways and thus be prevented from becoming 
a social danger by swelling the disorderly ranks 
of the permanently criminal classes. If a person 
proves to be unamenable to moral or penitential 
measures and remains an incorrigible trans- 
gressor, it is the duty of the community to set 
him aside by death or by life-long durance. 
Penal legislation does not aim primarily at the 
betterment of the individual; laws are enacted 
not for the purpose of making men good and 
noble, but solely for the purpose of rendering 
them safe members of society. This is effected 
by depriving the irremediably vicious of their 
liberty and, if necessary, also of their life. 

The pardoning power, too, must be exercised 
with the utmost reserve and circumspection. The 
state does not look upon public offences as sins 
but as crimes. The introduction of the theo- 
logical conception of delinquencies into the pro- 

Capital Punishment of Animals 249 

vince of civil government has always been the 
vice of hierarchies and has never failed to work 
immense mischief by leading inevitably to im- 
pertinent intermeddling with matters of con- 
science and private opinion, putting a premium 
on pretended repentance and like hypocrisies, 
and converting the witness-box into a confes- 
sional and the court of justice into a court of 
inquisition. This has been uniformly the result 
wherever a body of priests has become a body 
of rulers, endowed with sovereignty in the 
administration of secular affairs. 

If it could be conclusively proved or even 
rendered highly probable, that the capital 
punishment of an ox, which had gored a man 
to death, deterred other oxen from pushing with 
their horns, it would be the unquestionable 
right and imperative duty of our legislatures 
and tribunals to re-enact and execute the old 
Mosaic law on this subject. In like manner, 
if it can be satisfactorily shown that the hang- 
ing of an admittedly insane person, who has 
committed murder, prevents other insane per- 
sons from perpetrating the same crime, or tends 
to diminish the number of those who go insane 
in the same direction, it is clearly the duty of 
society to hang such persons, whatever may be 
the opinion of the alienist concerning their 
moral responsibility. Nor is this merely a 
hypothetical case or purely academical ques- 
tion. It is a well-established fact, that the 

250 The Criminal Prosecution and 

partially insane, especially those affected with 
"moral insanity" or so-called "cranks," have 
their intelligence intact, and are capable of 
exercising their reasoning powers freely and 
fully in laying their plans and in carrying out 
their designs. Indeed, criminals of this class 
are sometimes known to have entertained the 
thought that they would be acquitted on the 
ground of insanity, and have thereby been em- 
boldened to do the deed; and it is by no means 
impossible, but highly probable, that a belief 
in the certainty of punishment would have acted 
as an effective deterrent. A case of this kind 
occurred in 1894 i" England, where an inmate 
of a lunatic asylum deliberately murdered a 
lawyer, who was visiting the institution. The 
murderer declared that he had no grudge against 
his victim, but believed himself to be perse- 
cuted in general and wished to call attention to 
his wrongs by assassinating some official or 
prominent person. His method of redress was 
that of the ordinary anarchist; and his confes- 
sion that he would not have dared to commit 
the act unless he had believed that as a certifi- 
cated lunatic under confinement he ran no risk 
of being hanged, illustrates the point in ques- 
tion. There can be no doubt, for example, 
that the execution of Guiteau for the assassina- 
tion of Garfield has greatly lessened the dangers 
of this kind to which the President of the 
United States is exposed; just as the swift and 

Capital Punishment of Animals 251 

severe punishment of the Chicago anarchists has 
dampened the zeal and restrained the activity 
of the fanatics, who labour under the delusion 
that, in a free country, dynamite bombs are the 
fittest means of disseminating reformatory 
ideas and bringing about the social and political 
regeneration of the world. 

From this point of view it is hardly neces- 
sary to remark upon the absurdity of Lom- 
broso's assertion that the jurists, who formerly 
condemned and punished animals, were more 
logical and consistent than those who now pass 
sentence of death on cretins like Grandi or 
cranks (grafomani matteschi) like Passannante 
and Guiteau (Archivio di Psichiatria. Torino, 
1881, Vol. II. Fasc. IV.), since he utterly 
ignores the preventive character and purpose of 
judicial punishment and its practical utility in 
checking the homicidal propensities of such 
persons, whereas the criminal prosecution and 
capital punishment of a pig for infanticide will 
not have the slightest effect in preventing 
other pigs from mangling and devouring little 

That animals might be deterred from doing 
violence to men by putting one of their kind to 
death and suspending its body as a scarecrow is 
maintained by a distinguished writer in the first 
half of the sixteenth century, Hierolymus 
Rosarius, the nuntius of Pope Clement VII. to 
the court of Ferdinand I., then King of Hun- 

252 The Criminal Prosecution and 

gary, who states that in Africa crucified lions are 
placed near towns, and that other lions, however 
hungry they may be, are kept away through fear 
of the same punishment : cujus poencB metu, 
licet urgent fames, desinunt. He records also 
that in riding from Cologne towards Diiren, he 
and his companions saw in the vast forest two 
wolves in brogans hanging on a gallows, just 
like two thieves, as a warning to the rest of the 
pack : " Et nos ab Agrippina Colonia Duram 
versus equitantes in ilia vasta silva, vidimus 
duos caligatos lupos non secus quam duos 
latrones, furcse suspenses; quo similis poence 
formidine a maleficio reliqui deterreantur." In 
like manner the American farmer sets up a dead 
hawk as a deterrent for the protection of his 
hens. We may add that Rosarius entertained 
a high opinion of the intelligence and moral 
character of animals and wrote a book to prove 
their frequent superiority to men in the use of 
their rational faculties. This very clever and 
original work entitled : Quod animalia bruta 
scBpe ratione utantur melius hom,ine, was first 
published by Gabriel Naud^ at Paris in 1648; 
an enlarged edition was issued by Ribow at 
Helmstedt in 1728, with a dissertation on the 
soul in animals. 

In the class of ill-poised minds, yclept cranks, 
just mentioned, the spirit of imitation is peculi- 
arly strong and morbidly contagious. The 
celebrated psychiater, Baron Von Feuchters- 

Capital Punishment of Animals 253 

leben, in his treatise On the Diatetics of the 
Soul, cites the case of a French soldier, who 
shot himself in a sentry-box; soon afterwards, 
several other soldiers took their lives in the 
same manner and in the same place. Napoleon 
I. ordered the sentry-box to be burned and thus 
put an end to the suicides. A similar instance 
is recorded by Max Simon in his Hygiene de 
I'esprit, in which he states that a workman 
hanged himself in the embrasure of a gate, and 
his example was followed directly by a dozen 
of his fellows, so that it was found necessary 
to wall up the gate in order to stop this strange 
epidemic. The same effect is produced by 
popular romances, in which the hero or heroine 
or both together dispose of themselves in this 
way; sometimes whole communities are thus 
infected by a single work of fiction ; perhaps 
the most notable case of this kind in modern 
literature is the era of sentimentalism and 
suicidism which followed the publication of 
Goethe's Werther. It is well known, too, that 
another class of sensational novels, the plots 
of which consist in the development of criminal 
intrigues, tend to promote crime by rendering it 
fascinating and indicating an attractive and ex- 
citing method of perpetrating it. We have a 
recent and very striking instance of this kind 
in the origin and evolution of the notorious 
Dreyfus affair. In June 1893, a year and a half 
before the arrest of Dreyfus, a novel entitled 

254 The Criminal Prosecution and 

Les Deux Freres, by Louis Letang, appeared 
in the Paris Petit Journal, the plot of which 
may be concisely described as follows. A 
young and capable officer, Captain Philippe 
Dormelles, who holds a position of confidence 
in the French department of war, is envied and 
hated by two colleagues named Aur61ien and 
Daniel. Their enmity and jealousy finally be- 
come so intense that they conspire to effect his 
ruin by accusing him of selling to a foreign 
power the secrets of the national defence. It is 
arranged that a compromising letter imitating 
the handwriting of Dormelles and addressed to 
a foreign military attache shall be placed in the 
secret archives, where it will fall into the hands 
of the head of the department Lieutenant- 
Colonel Alleward. Dormelles is arrested and 
thrown into the prison Cherche-Midi, and at the 
same time Daniel causes a violent article to be 
inserted in a newspaper Le Vigilant, charg- 
ing him with high treason, and seeking to excite 
public opinion against him. This article con- 
cludes with the false statement that a search in 
Dormelles' department had led to the discovery 
of important documents referring to the fabrica- 
tion of smokeless powder, and that thereupon 
Dormelles had confessed his guilt. He is then 
sentenced to the galleys, but his betrothed is 
convinced of his innocence and finally succeeds 
in detecting and exposing the forgeries. Lieu- 
tenant-Colonel Alleward is arrested and com- 

Capital Punishment of Animals 255 

mits suicide in prison, not with a razor like 
Henry, but witii a revolver. One scene in the 
novel describes the appearance of a veiled lady 
on the very spot near the Champs Elys^es, 
where the mysterious veiled lady is said to have 
appeared to Esterhazy three years later and for 
much the same purpose. The French minister of 
war, Mercier, was forced to proceed against 
Dreyfus by the Libre Patrole, which published 
lies about his confession, as Le Vigilant did 
about Dormelles. The only rational explana- 
tion of this remarkable concurrence of events, 
as they are narrated in the fiction and after- 
wards occurred in fact, is that the method of con- 
ducting the conspiracy against Dreyfus and the 
possibility of accomplishing it were suggested 
by Letang's story, although the conspirators 
doubtless did not anticipate that the logic of 
events would render the results of their false- 
hoods and forgeries as fatal to them as they were 
to their prototypes in the novel. Every 
scoundrel is firmly convinced that he can pattern 
after his precursors in villainy, avoid their mis- 
takes and commit the same crime without in- 
curring the same penalty. 

That paroxysms of epilepsy, hysterics and 
various forms of frenzy are contagious and may 
be easily communicated to nervous persons, who 
witness them, has been clearly proved. Vicious 
passions obey the same law of imitation even in 
a still higher degree than tender emotions and 

256 The Criminal Prosecution and 

nervous diseases, and more than two centuries 
ago the illustrious jurisconsult, Samuel Pufen- 
dorf, laid down the general principle that he 
who for the first time commits a crime liable to 
spread by contagion and to become virulent, 
should be punished with extreme severity, in 
order that it may not infect others and create 
a moral pestilence. 

The hemp cure is always a harsh cure, especi- 
ally where there is any doubt as to the offender's 
mental soundness; but in view of 'the increasing 
frequency with which atrocious and wilful 
crime shelters itself under the plea of insanity 
and becomes an object of misdirected sympathy 
to maudlin sentimentalists, the adoption of 
radical and rigorous measures in the infliction 
of punishment were perhaps an experiment well 
worth trying. Meanwhile, let the psychiater 
continue his researches, and after we have 
passed through the present confused and peril- 
ous period of transition from gross and brutal 
mediaeval conceptions of justice to refined and 
humanitarian modern conceptions of justice, we 
may, in due time, succeed in establishing our 
penal code and criminal procedure upon founda- 
tions that shall be both philosophically sound 
and practically safe. 






Anno domini millesimo quingentesimo octuagesimo 
septimo et die decima tertia mensis aprilis comparuit 
in bancho actorum judicialium episcopatus Maurianne 
honestus vir Franciscus Ameneti scindicus et procurator 
procuratorioque nomine totius communitatis et parrochie 
Sancti JuUiani qui in causa quam pretendunt reassumere 
prosequi aut de novo intentare coram reverendissimo 
domino Maurianne episcopo et principe seu reverendo 
domino generali ejus Vicario et Officiali contra Animalia 
ad formam muscarum volantia coloris viridis communi 
voce appellata Verpillions seu Amblevins facit constituit 
elegit et creavit certum ac legitimum procuratorem totius 
dicte communitatis et substituit vigore sui scindicatus de 
quo fidem faciet egregium Petremandum Bertrandi causi- 
dicum in curiis civitatis Maurianne presentem et accep- 
tantem ad fines coram eodem reverendissimo Episcopo 
et ejus Vicario generali comparendi et faciendi quicquid 
circa negotiis ejusdem cause spectat et pertinet et prout 
ipse scindicus facere posset si presens et personaliter 
interesset cum electione domicilii! et ceteris clausulis 

26o Appendix 

relevationis ratihabitionis et aliis opportunis suo jura- 
mento firmatis subque obligatione et hypotheca bonorum 
suorum et dicte communitatis que conceduntur in bancho 
die et anno premissis. 


Anno domini millesimo quinquagesimo octuagesimo 
septimo et die sabatti decima sexta maii comparuerunt 
judicialiter coram nobis Vicario generali Maurianne 
prefato Franciscus Ameneti conscindicus Sancti JuUiani 
cum egregio Petremando Bertrandi ejus procuratore pro- 
ducens testimoniales constitutionis facte eidem egregio 
Bertrandi die tertia decima aprilis proxime fluxi petit sibi 
provideri juxta supplicationem nobis porrectam parte 
scindicorum et communitatis Sancti Julliani exordiente 
Divino primitus imploratoauxilio signatum Franciscus Faeti 
contra Animalia bruta ad formam muscarum volantia 
nuncupata Verpillions producens etiam acta et agitata 
superioribus annis coram predecessoribus nostris maxima 
de anno 1545 et die vicesima secunda mensis aprilis 
unacum ordinatione nostra lata octava maii millesimo 
quingentesimo octuagesimo sexto et ne contra Animalia 
ipsis inauditis procedi videatur petunt sibi provideri de 
advocato et procuratore pro defensione si quam habeant 
aut habere possent dictorum Animalium se offerentes 
ad solutionem salarii illis per nos assignandi. Inde et 
nos Vicarius generalis Maurianne ne Animalia contra que 
agitur indeffensa remaneant deputamus eisdem pro pro- 
curatore egregium Anthonium Fillioli licet absentem cui 
injungimus ut salario moderate attenta oblatione conquer- 
entium qui se offerunt satisfacere teneatur et debeat ipsa 

Appendix 261 

Animalia protegere et defendere eorumque jura et ne de 
consilio alicujus periti sint exempta ipsis providemus de 
spectabili domino Petro Rembaudi advocatum (sic) cui 
similiter injungimus ut debeat eorum jura defendere 
salario moderate ut supra. Quamquidem deputationem 
mandamus eis notifficari et ipsis auditis prout juris fuerit 
ad ulteriora providebitur. Quo interim visa per nos 
quadam ordinatione fuit fieri cartas processiones et alias 
devotiones in dicta ordinatione declaratas quas factas 
fuisse non edocetur idee ne irritetur Deus propter non 
adempletionem devotionum in ipsa ordinatione narratarum 
dicimus ipsas devotiones imprimis esse fiendas per 
instantes et habitatores loci pro quo partes agunt quibus 
factis postea ad ulteriora procedemus prout juris fuerit 
decernentes literas in talibus necessarias per quas 
comittimus curato seu vicario loci quathenus contenta 
in dicta ordinatione in prono ecclesie publice declarare 
habeat populumque monere et exortari ut illas adimpleant 
infra terminum tam breve quam fieri poterit et de ipsis 
attestationem nobis transmittere. Datum in civitate 
Sancti Johannis Maurianne die anno permissis. 


Anno premisso et die trigesima mensis maii com- 
paruerunt judicialiter coram nobis Vicario generali 
Maurianne prefato honestus Franciscus Ameneti con- 
scindicus jurat venisse cum egregio Petremando Bertrandi 
ejus procuratore producit et reproducit supplicationem 
nobis porrectam retroacta et agitata contra eadem Ani- 
malia maxima designata in memoriali coram nobis tento 

262 Appendix 

decima sexta maii literas eodem die curato Sancti JuUiani 
directas unacum attestatione signata Jiomaneh' qua, constat 
clerum et incolas dicti loci proposse satisfecisse contentis 
in eisdem literis ad formam ordinis in ipsis designate 
petit sibi juxta et in actis antea requisita provideri et alia 
uberius juxta cause merita et inthimari egregio Fillioli 
procuratori ex adverso. Hinc egregius Fillioli procurator 
dictorum Animalium brutorum petit communicationem 
omnium et singularum productionum ex adverso cum 
termino deliberandi defendendi et participandi cum 
domino advocato premisso. Indi et nos Vicarius 
generalis Maurianne prefatus communicatione superius 
petita concessa partibus premissis diem assignamus 
sabatti proximi sexta instantis mensis junii ad ibidem 
judicialiter coram nobis comparandum et tunc per 
dictum egregium Fillioli nomine quo supra quid voluerit 
deliberare et defendere deliberandum et defendendum. 
Datum in civitate Maurianne die et anno premissis. 


Divino primitus implorato auxilio humiliter exponunt 
syndici totius communitatis seu parrochie Sancti JuUiani 
cseterique homines ac sua interesse putantes et infra- 
scriptis adherere cupienles quod cum alias ob forte 
peccata et csetera commissa tanta multitude bruti 
animalis generis convoluntium vulgo tamen vocabulo 
Amblevini seu Verpillion dicti per vineas et vinetum 
ipsius parrochie accessisset damna quamplurima ibi per- 
petrantis folia et pampinos rodendo et vastando ut ex 
eis nuUi saltern pauci fructus percipi poterant qui juri 

Appendix 263 

cultorum satisffacere possint et quod magis et gravius 
erat ilia macula ad futura tempora trahendo vestigia nuUi 
palmites fructus afferentes produci poterant illi autem 
flagitio antecessores amputate viarii credentes prout divina 
prudentia erat credendum porrectis precibus adversus 
eadem Animalia et in eorum defensoris constituti per- 
sonam debitis sumptis informationibus ac aliis formali- 
tatibus necessariis prestitis sententia seu ordinatio pro- 
lata comperitur cujus et divinse potentise virtute prsecibus 
tamen et officiis divinis mediantibus illud flagitium et 
inordinatus furor prefatorum brutorum Animalium cessa- 
runt usque ad duos vel circa citra annos quod veluti 
priscis temporibus rediere in eisdem vineis et vineto et 
damna inextimabilia et incomprehensibilia afferre cep- 
erunt ita ut pluribus partibus nulli fructus sperantur 
percipi possetque in dies deterius evenire culpa forte 
hominum minus orationibus et cultui divino vacantium 
seu vota et debita non vere et integre reddentium que 
tamen omnia divinse cognitioni consistit et remittenda 
veniunt eo quod Dei arcana cor hominis comprehendere 

Nihilominus cum certum sit gratiarum dona diversis 
diversimode fore coUata hominibus et potissimum 
ecclesiastico ordini ut in nomine Jesu et virtute ejus 
sanctissime passionis possit in terris ligare solvere et 
flectere iterum ad R. V. recurrentes prius agitata reas- 
sumendo et quatenus opus fuerit de novo procedendo 
petunt in primis procuratorem aut defensorem ipsis 
Animalibus constitui ob defectum prsecedentis vita functi 
quo facto et ut de expositis legitime constet debeatis 
inquisitiones et visitationes locorum fieri per nos aut alium 
idoneum commissarium cseterasque formalitates ad haec 
opportunas et requisitas exerceri ipso defensore legitime 

264 Appendix 

vocato et audito nee non aliter prout magis equum visum 
et compertum de jure extiterit procedere dignetur ad 
expulsionem dictorum Animalium via interdicti sive 
excommunicationis et alia debita censura ecclesiastica et 
justa ipsius sanctas constitutiones ad quas et divinse 
clementiae et mandatis suorum ministrorum se parituros 
offerunt et submittunt omni superstitione semota quod si 
stricta excommunicatione processum fuerit sunt parati 
dare et prestare locum ad pabulum et escam recipiendos 
ipsis Animalibus quemquidem locum exnunc relaxant et 
declarant prout infra et alias jus et justitiam ministrari 
omni meliori modo implorato benigno officio. 

Fran. Faeti 

Ego subsignatus curatus Sancti Julliani attestor quo- 
modo sacro die Penthecostes decima septima mensis 
maij anno domini millesimo quingentesimo octuagesimo 
septimo ego accepi de manibus sindicorum mandatum 
exortativum sive ordinationem R*" generalis Vicarii et 
Officialis curie diocesis Maurianne datum in civitate 
Sancti Joharmis decima sexta mensis may anno quo 
supra quod cum honore et reverentia juxta tenorem illius 
die lune Penthecostes decima octava may in offertorio 
magne misse parochialis populo ad divina audienda con- 
gregate publicavi idem populum michi comraissum ad 
contritionem suorum peccaminum et ad devotionem juxta 
meum posse et serie monui processiones missas obsecra- 
tiones et orationes in predicto mandate contentas per tres 
dies continues videlicet vicesima vicesima prima vicesima 
secunda predicti mensis cum ceteris presbiteris feci in 
quibus processienibus scindici cum parrechianis utriusque 
sexus per majorem partem circuitus vinearum interfuerunt 

Appendix 265 

deprecantes Dei omnipotentis dementia pro extirpatione 
brutorum Animalium predictas vineas atque alios fructus 
terre devastantium vulgariter nuncupatas (sic) Verpilions 
seu Amblavins in predicto mandato mentionata sive 
nominata in quorum fidem ad requisitionem dictorum 
scindicorum qui hanc attestationem petierunt quam illis 
in exonus mei tradidi hac die vicesima quarta may anno 
quo supra. 


Franciscus de Crosa Canonicus et Cantor ecclesie 

cathedralis Sancti Johannis Maurianne in et tem- 

poralibus episcopatus Maurianne generalis Vicarius et 

Officialis dilecto sive vicario Sancti Julliani s in 

domino. Insequendo ordinationem per nos hodie date 
presentium latam in causa scindicorum Sancti Julliani 
agentium contra Animalia bruta ad formam muscarum 
volantia coloris viridis nuncupata Verpillions supplicata 
per quam inter cetera contenta in eadem dictum et 
ordinatum extitit devotiones et processiones fieri ordi- 
natas per ordinationem latam ab antecessore nostro die 
octava maii anni millesimi quingentesimi quadragesimi 
sexti in eadem causa in primis et ante omnia esse fiendas 
per instantes et habitatores dicti loci Sancti Julliani. 
Igitur vobis mandamus et injungimus quathenus die 
dominico Penthecostes in prono vestra ecclesie par- 
rochialis contenta in dicta ordinatione declarare habeatis 
populumque monere et extortari ut ilia adimpleant infra 
terminum tam breve quod fieri poterit et de ipsis attesta- 
tionem nobis transmittere. Tenor vero dicte ordinationis 
continentis devotiones sequitur et est talis. 

Quia licet per testes de nostri mandato et commis- 
sarium per nos deputatum examinatos apparet Animalia 

266 Appendix 

bruta contra que in hujusmodi causa parte prefatorum 
supplicantium fuit supplicatum intulisse plura dampna 
insupportabilia ipsis supplicantibus que tamen dampna 
potius possunt attribuenda peccatis supplicantium deci- 
mis Deo omnipotenti de jure primitive et ejus ministris 
non servientium et ipsum summum Deum diversimode 
eorum peccatis non {sic) offendentium quibus causis 
causantibus dampna fieri supplicantibus predictis non ut 
fame et egestate moriantur sad magis ut convertantur 
et eorum peccata deffluant ut tandem abundantiam 
bonorum temporalium consequantur pro substentatione 
eorum vite vivere et post banc vitam humanam salutem 
eternam habeant. Cum a principio ipse summus Deus 
qui cuncta creavit fructus terra et anima vegetative 
produci permiserit tam substentatione vite hominum 
rationabilium et volatilium super terram viventium 
quamobrem non sic repente procedendum est contra 
prefata Animalia sic ut supra damnificantia ad fulmina- 
tionem censurarum acclesiasticarum Sancta Sede Apos- 
tolica inconsulta sive ab eadem ad id potestatem haben- 
tibus superioribus nostris sad potius recurrendum ad 
misericordiam Dei nostri qui in quacumque hora in- 
ganuarit peccata propitius est ad misericordiam. Ipsi 
quamobrem causis premissis et alliis a jure resultantibus 
pronunciamus et declaramus inprimis fore et esse mo- 
nendos et quos tenore presentium monemus et moneri 
mandamus ut ad ipsum Dominum nostrum ex toto et 
puro corde convertantur cum debita contrictione de pec- 
catis commissis at proposito confitendi temporibus et 
loco opportunis et ab eisdam da futuro abstinendi et de 
catero debite persolvendum Deo decimas de jura debitas 
et ejus ministris quibus de jure sunt persolvende aidem 
Domino Deo nostro per meritata sue sacratissime passio- 

Appendix 267 

nis et intercessione Beate Marie Virginis et omnium 
Sanctorum ejus humiliter exposcendo veniam et quibus- 
cumque peccatis delictis et offensis contra ejus majes- 
tatem divinam factis ut tandem ab afflictionibus pre- 
fatorum Animalium liberare dignetur et ipsa Animalia 
loca non it . . . ipsis supplicantibus ceterisque christianis 
transferre et al . . . secundem ejus voluntatem et aliter 


eisdem supplicantibus uno die dominico 

in offertorio ut ipso 

die dominico supplicantibus 

per circuitum 

vinearum ejusdem parrochie et per 

loca cum aspersione aque benedicte pro effugandis prefatis 
Animalibus tribus diebus immediate sequentibus signifi- 
cationem et notificationem sic ut supra fiendas quibus pro- 
cessionibus durantibus decantari et celebrari mandamus 
tres missas altas ante sive post quamlibet earum proces- 
sionum ad devot. . . cleri et populi quarum prima primo 
die decantabitur de Sancto Spiritu cum orationibus de 

Beata Maria Deus Deus qui contritorum et A 

cunctis nos quesumus Dotnine mentis et corporis etc. et 
una pro defunctis secundo die decantatis de Beata Maria 
Virgine cum orationibus Sancti Spiritus Beate Marie 
Virginis illis Qui contritorum et pro deffunctis. In 
eisdem processionibus supra fiendis jubemus in eadem 
ecclesia genibus flexis dici et decantari integriter Veni 
Creator Spiritus quo hymno sic finito et dicto verceleto 
Emitte Spiritum tuum et creabuntur etc. cum orationibus 
Deus qui corda fidelium singulis diebus sic prout supra 
fiat proces . . . decantando septem psalmos penitentiales 
cum letaniis suffragii et orationibus inde sequentibus 
mandamus moneri supplicantes prout supra ut in eisdem 

268 Appendix 

missis processionibus et devotionibus sic ut supra fiendis 
ad minus d. . de qualibet domo devote intersint dicendo 
eorum Fidem catholicam et alias devotiones et orationes 

cum fuerit humiliter et devote preces 

et efFundendo Domino Deo nostro ut per merita sue 
sanctissime passionis et intercessionera Beatissime 
Virginis Marie et omnium Sanctorum dignetur expellere 
ipsa Animalia predicta a prefatis vineis ut de fructus 

earumdem non corrodant nee et 

ibidem supplicantes a cunctis alliis adversitatibus liberare 
ut tandem de eisdem fructibus debite vivere possint et 
eorum necessitatibus subvenire et semper in omnibusque 
glorificare laudare eumdem Dominum et Redemptorem 
nostrum et in eodem fidem et spem nostram totaliter 
cohibenda a devastatione prefatarum vinearum et nos 
liberare a cunctis alliis adversitatibus dummodo sic ut 
supra ejus mandata servaverimus et hoc absque allia 
fulminatione censurarum ecclesiasticarum quas distu- 
limus fulminare donee premissis debite adimpletis et 
alliud a prefatis superioribus nostris habuerimus in 
mandatis literas quatenus expediat in exequutionem 

omnium et singulorum premissorum decernentes 

Post insertionem dicte ordina- 

tionis dicti scindici Sancti Julliani petierunt sibi concedi 
literas quas concedimus datas in civitate Sancti Johannis 
Maurianne die decima sexta mensis maii millesimo 
quingentesimo octuagesimo septimo. 

Franciscus de Crosa Vic.^ et Off.^ gen."' Maurianne. 


Per eumdem R. D. Maurianne generalem Vicarium et 

(locus sigilli.) 

Appendix 269 


Anno premisso et die quinta mensis junii comparu- 
erunt judicialiter coram nobis Vicario generali Mauri- 
anne Franciscus Ameneti consindicus Sancti JuUiani 
asserens venisse a loco sancti Julliani ad fines re- 
mittendi in manibus egregii Anthonii Fillioli pro- 
curatoris Animalium brutorum cedulam signatam 
Rembaud producendam pro deffensione dictorum Ani- 
malium quiquidem egregius Fillioli produxit realiter 
eandem cedulam incohantem Approbando etc. signatam 
Rembaud dicens concludens et fieri requirens pro ut in 
eadem cedula cOntinetur. Hinc et egregius Petre- 
mandus Bertrandi procurator dictorum sindicorum 
Sancti Julliani agentium petiit copiam dicte cedule. Inde 
et nos Vicarius generalis Maurianne prefatus partibus 
premissis diem assignamus veneris proximam duo- 
decimam presentis mensis junii nisi etc. ad ibidem 
coram nobis comparendum et tunc per dictum egregium 
Bertrandi nomine quo supra quid voluerit deliberare 
deliberandum eidem concedendo copiam dicte cedule per 
eum requisitam. Datum in civitate Sancti Johannis 
Maurianne die et anno premissis. 


Approbando et in quantum de facta in medium ad- 
ducendo ea que hoc in processu antea facto fuerunt et 
potissimum scedulam productam ex parte egregii Baud- 
rici procuratoris Animalium signatam Claudius Morellus 
egregius Anthonius Fillioli procurator et eo nomine a 

270 Appendix 

reverendo domino Vicario constitutus occasione tuen- 
dorum ac defifendendorum Aniraalium de quibus hoc 

in processo agitur ut in actis ad quae impugn 

super relatio habeatur et brevibus agendo ac realiter 
deffendendo excipit et opponit ac multum miratur de 
hujusmodi processu tarn contra personas agentium quam 
contra insolitum et inusitatum modum et formam pro- 
cedendi de eo saltern modo quo hactenus prbcessum fuit 
maxime cum agitur de excommunicatione Animalium 
quod fieri non potest quia omnis excommunicatio aut 
fertur ratione contumaciae cap. prima et ibi Gr. De 
sententiis excommunicationis lib. 6. at cum certum est 
dicta animalia in contumacia constitui non posse quia 
legitime citari non possunt per consequens via excom- 
municationis Agentes uti non possunt nee debent eo 
maxime quod Deus ante hominis creationem ipsa 
Animalia creavit ut habetur Genesi ib. Producat terra 
animam viventem in genere suo jumenta et reptilia et 
bestias terre secondum species suas benedixitque eis dicens 
crescite et multiflicamini et replete aquas maris avesque mul- 
tiplicentur super terram quod non fecisset nisi sub spe 
quod dicta Animalia vita fruerentur turn quod ipse Deus 
optimus maximus creator omnium Animalium tarn 
rationabilium quam irrationabilium cunctis Animalibus 
suum dedit esse et -vesci super terram unicuique secon- 
dum suam propriam naturam certum est et potissimum 
plantas ad hoc creavit ut animalibus deservirent est 
enim ordo naturalis quod plante sunt in nutrimentum 

Animalium et quedam in nutrimentum aliorum 

et omnia in hominis. Genes: 9: ibi Quasi 

olera virentia tradidi vobis omnia a Deo quod dicta 
Animalia de quibus Adversantes conqueruntur modum 
Vivendi a legi ordinatum non videtur egredi tum quia 

Appendix 271 

bruta sensu et usu rationis carentia que non secondum 
legem divinam gentium canonicam vel civilem sed 
secondum legem naturae primordialis qua Animalia 
cuncta docuit vivere solo instinctu naturae vivunt et 
ut ait Philosophus actus activorum non operantur in 

patknti. tum quia jura naturalia sunt im- 

mutabilia § Sed naturalia Instit. : dejur natur. gent, et 
civili. ergo cum dicta Animalia solo instinctu naturae 
dicantur per consequens excommunicanda non veniunt. 
Et quamvis dicta Animalia hominibus subjecta esse 
dicantur ut habetur Ecclesiast: 17. ibi Posuit timorem 
illius super omnem carnem et bestiarum ac volatilium non 
idcirco adversus talia Animalia licet subjecta uti non de- 
bent excommunicatione nee ullo modo veniunt petita 
executioni mandanda saltem modo petito presertim cum 
ratio et aequitas dicta Animalia non regat. Et licet juribus 
divino antiquo civili et canonico promulgatum legitur 
Qui seminat metet ut habetur Esai 37 ibi. In annoautem 
tertio seminate et mettete et plantate vineas et commedite 
fructum earum non tamen cequitur(w) quin dicta Animalia 
plantis non utantur quia sunt irrationabilia et carentia 
sensu neque ea posse dicernere quae sunt usui hominum 
destinata vel non certissimum est quia solo instinctu 
nature ut supra dictum est vivunt non idcirco necesse 
habent Agentes adversus dicta Animalia uti excommuni- 
catione sed peccata eorum universus populus 

presertim quern hujusmodi flagella affligunt et prose- 
quuntur et poenitentiam agat exemplo Ninivitarum qui 
ad solam vocem Jone prophete austeriter poenitentiam 
egerunt ad mittigandam et placandam iram Dei. Jon. 3. 
veniat populus et imploret misericordiam Dqi optimi et sic 
maximi ut sua sancta gratia et per merita sanctissimae 
passionis excessum dictorum Animalium compessere et 

272 Appendix 

refrenare dignetur et hoc modo dicta Animalia e vineis 
ejicient et non eo modo quo procedunt. Quibus universis 
consideratis evidentissime patet dicta Animalia e vitibus 
seu e vineis ejicienda non esse attento quod solo instinctu 
naturae vivunt et ita per egregium Anthonium Fillioli 
eorumdem Brutorum legittimi actoris fieri instatur et ab 
ipso petitur ipsum monitorium requisitum in quantum 
concernit dicta Animalia revocari et annuUari nee aliquo 
modo consentiendo quod dictum monitorium eis con- 
cedatur nee etiam aliqui visitationi vinearum ut est con- 
clusum per Agentes in eorum supplicatione protestando 
de omni nuUitate et hoc omni meliori modo via jure ac 
forma salvis aliis quibuscumque juribus ac deffentioni- 
bus competentibus aut competituris humiliter implorato 
benigno officio judicis. 

Petrus Rembaudus 


Anno premisso et die duodecima mensis junii com- 
paruerunt judicialiter coram nobis Vicario generali 
Maurianne prefato egregius Petremandus Bertrandi 
procurator dictorum Agentium petens alium terminum. 
Hinc et egregius Anthonius Fillioli procurator dictorum 
Animalium petiit viam precludi parti quidquiam ulterius 
deliberandi et producendi. Inde et nos Vicarius generalis 
Maurianne prefatus partibus premissis diem assignamus 
veneris proximam decimam nonam presentis mensis nisi 
etc. ad ibidem judicialiter coram nobis comparendum et 
tunc per dictum Bertrandi nomine quo suppra quid 
voluerit precise deliberare deliberandum. Datum Mau- 
rianne die et aimo premissis. 

Appendix 273 


Anno premisso et die veneris decima nona mensis 
junii preassignata comparuerunt judicialiter coram nobis 
Vicarium generalem Maurianne prefato egregius Petre- 
mandus Bertrandi procurator Sindicorum Sancti Julliani 
Agentium producens cedulam incohantem Etiam si 
cunda et signatam Franciscus Fay dicens concludens et 
fieri requirens pro ut et quemadmodum in eadem cedula 

Hinc et egregius Anthonius Fillioli procurator dictorum 
Animalium conventorum petiit copiam dicte cedulse cum 
termino deliberandi et respondendi. 

Inde et nos Vicarius generalis Maurianne prefatus 
copia prepetita concessa partibus premissis diem assign- 
amus veneris proximam vigessimam sextam hujus mensis 
junii nisi etc. ad ibidem judicialiter coram nobis compar- 
endum et tunc per dictum Fillioli nomine quo supra 
quid voluerit deliberare deliberandum. Datum Maurianne 
die et anno premissis. 


Anno premisso et die sabatti vigesima septima mensis 
junii subrogata ob diem feriatum intervenientem com- 
paruerunt judicialiter coram nobis Vicario generali prefato 
Catherinus Ameneti consindicus Sancti Julliani jurat 
venisse cum egregio Petremando Bertrandi ejus procura- 
tore producens realiter cedulam signatam Fay dicens 
concludens prout in eadem cedula continetur. Hinc 
et egregius Fillioli procurator Animalium petens copiam 
cedule cum termino deliberandi. Inde et nos Vicarius 

274 Appendix 

prefatus copia prepetita concessa partibus preraissis diem 
assignamus sabbati proximi quartam instantis mensi juUii 
nisi etc. ad ibidem judicialiter coram nobis comprehen- 
dum est tunc per dictum egregium Fillioli quid voluerit 
deliberare deliberandum. Datum Maurianne die et anno 


Etiamsi cuncta ante hominem sint creata ex Genesi 
non sequitur laxas habenas concessas fore immo contra ut 

ibidem coUigitur et apud D in i. par. q. 26. ar. i. 

et psal. 8. Corin. 5. hominem fore creatum ac constitutum 
ut coeteris creaturis dominaretur ac orbem terrarum in 
aequitate et justitia disponeret. Non enim homo contem- 
platione aliarum creaturarum habet esse sed contra. Nee 
reperitur illam dominationem circa bruta animantia ac 
eorum respectu suscipere limitationem verum in divinis 
cavetur omne genuflecti in nomine Jesu. 

Sed cum circa materiam majores nostri satis scripserint 
in actis reassumptis et nihil novi adductum ex adverso 
inveniatur frustra resumerentur. Unde inherendo re- 
sponsis spectabilis domini Yppolyti de CoUo et postquam 
constat fore satisffactum ordinationi nihil est quod 
impediri possit fines supplicatos adversus Animalia de 
quorum conqueritur ad quod concluditur ac justitiam 
ministrari omni meliori modo implorato benigno officio. 

Franc Faeti 


Anno premisso et die quarta mensis jullii comparuerunt 
judicialiter coram nobis Vicario generali Maurianne 

Appendix 2y^ 

prefato egregius Anthonius Fillioli procurator dictorum 
Animalium producens cedulam incohantem Zicef multis 
signatam Renibaudi dicens et concludens prout in eadem 
cedula continetur hinc et egregius Petremandus Bertrandi 
procurator dictorum Agentium petit copiam cedule cum 
termino deliberandi. Inde et nos Vicarius generalis 
Maurianne prefatus copia prepetita concessa partibus 
premissis diem assignamus sabbati proximam undecimam 
presentis mensis jullii nisi etc. ad ibidem judicialiter 
coram nobis comparendum et tunc per dictum egregium 
Bertrandi nomine quo supra quid voluerit deliberare 
deliberandum. Datum Maurianne die et anno premissis. 


Anno premisso at die quarta jullii comparuerunt coram 
nobis Vicario prefato egregius Petremandus Bertrandi 
procurator Agentium petit alium terminum. Hinc et 
egregius Anthonius Fillioli procurator Conventorum in- 
heret cedulatis suis et fieri petitis super quibus petit 
justitiam sibi ministrari. Inde et nos Vicarius generalis 
Maurianne prefatus partibus premissis diem assignamus 
sabbati proximam decimam octavam presentis mensis 
jullii nisi etc. ad ibidem judicialiter coram nobis com- 
parendum et tunc per dictum Bertrandi nomine quo 
supra quid voluerit deliberare deliberandum. Datum 
Maurianne die et anno premissis. 


Licet multis in locis reperiatur hominem creatum fuisse 
Ut cseteris Animalibus et creaturis dominaretur non 

2/6 Appendix 

idcirco opus est ut Agentes adversus dicta Animalia 
excommunicatione utantur sed via usitata et ordinaria 
et praesertim ut dictum est quod dicta Animalia jus naturae 
sequantur quod quidem jus nusquam immitatum {sic) re- 
peritur nam jus divinum et naturale pro eodem sumuntur. 
Can. I. dist. i. at jus divinum mutari non potest quod 
est in preceptis moralibus et naturalibus per consequens 
nee jus naturale mutari potest nam jus naturale manat ab 
honesto nempe ac ratione im mortal! et perpetua, at ratio 
jubet ut dicta Animalia vivant potissimum hiis nempe 
plantis que ad usum dictorum Animalium videntur creata 
ut supra dictum est ergo Agentes nulla ratione debent 
uti via excommunicationis. Igitur ne in causa ulterius 
progrediatur potissimum cum cedula pro parte Sindi- 
corum totius communitatis Sancti Julliani producta 
signata Fran: Faeti. nuUam penitus mereatur respon- 
sionem obstante quod nihil novi in dicta cedula pro- 
positum comperitur etiam quod contentis cedute parte 
gregii (egregii) Anthonii Fillioli procuratorio nomine 
dictorum Animalium producte mimime sit responsum 
idcirco cum omnia que videbantur adducenda ex parte 
dictorum Animalium adducta et proposita fuerunt ut 
ample patet in dicta cedula superius producta signata : P. 
Rembaudus. ad quam impugnatus semper relatio habeatur 
non igitur alia ex parte dictorum Animalium adducenda 
nee proponenda videntur presertim ut dictum est quod 
ratio et equitas dicta Animalia non regat quapropter 
egregius Anthonius Fillioli nemine dictorum Animalium 
suppra relatorum suoe cedule et fieri recuisitis inhcerendo 
concludit super eis jus dici et deffiniri et justiciam sibi 
in hujusmodi causa adversam fieri et promulgari implorans 
benignum officium omni melliori modo. 

P. Rembaudus 

Appendix 277 


Anno premisso et die decima octava mensis juUii com- 
paruerunt ? judicialiter coram nobis Vicario prefato 
egregius Petremandus Bertrandi procurator Agentium 
petens alium terminum. Hinc et egregius Fillioli pro- 
curator dictorum Animalium petit viam precludi parti 
quidquam ulterius articullandi et deducendi et inherendo 
suis cedulatis petit sibi justitiam ministrari. Inde et 
nos vicarius generalis Maurianne prefatus de consensu 
procuratorum dictarum partium ipsis partibus diem assign- 
amus primam juridicam post messes ad ibidem coram 
nobis comparendum et tunc per dictum egregium 
Bertrandi nomine quo suppra quid voluerit precise 
deliberare deliberandum. 


Anno premisso et die veneris vigesima quarta men- 
sis juli comparuerunt. judicialiter coram nobis Vicario 
generali Maurianne prefato egregius Petremandus Ber- 
trandi procurator Sindicorum Agentium produxit testi- 
moniales sumptas per communitatem Sancti Julliani 
congregatam coram visecastellano Maurianne contin- 
entes declarationem loci quem offerunt relaxare et 
assignare eisdem Animalibus pro eorum pabulo quathe- 
nus indigent ad formam earumdem testimonialium 
signatarum Prunier adversus quas petit adverse viam 
precludi quicquam opponendi et exipiendi et defifendendi 
quominus dicta Animalia devastantia non debeant arceri 
ambigi cogi et in virtute sancte Dei obedientite vineta 
loci predicti Sancti Julliani relinquere et in locum 

278 Appendix 

assignatum accedere et divertire ne deimpceps (deinceps) 
officiant eisdem vineis que sunt usui humano perneces- 
sariae et alias ulterius super cause exigentia provider! 
benignum officium R. D. V. implorando et ita intimari 
egregio Fillioli procuratori ex adverse. 

Quiquidem egregius Fillioli procurator dictorum 
Animalium petiit copiam et communicationem dictarum 
testimonialium cum termino deliberandi et deffendendi. 

Inde et nos Vicarius generalis Maurianne prefatus 
copia et communicatione prepetitis concessis partibus 
premissis diem assignamus primam juridicam post ferias 
messium proxime venturam ad ibidem judicialiter coram 
nobis comparendum et hinc per dictum egregium Fillioli 
nomine quo suppra quid voluerit deliberare deliberandum. 
Datum Maurianne die et anno premissis. 


' Du penultiesme jour du moys de juing mil cinq cent 
huictante sept. 

Ont comparu pardevant Nous Jehan Jullien Depupet 
notaire ducal et Vichastellain pour son Altesse au lieu de 
Sainct Jullien et Montdenix honnestes Francoys et 
Catherin Aimenetz conscindicz dudict lieu maistres 
Jehan Modere Andre Guyons Pierre Depupet notaires 
ducaulx maistre Reymond Thabuys honnestes Claude 
Charvin Jehan Prunier Claude Fay Frangys Humbert et 
Vuilland Due conseilliers dudict lieu avec des manantz 
et habitantz dudit lieu les deux partyes les troys faisantz 
le tout tous assembles au son de la cloche au Parloir 
damon place publicque dudit lieu de Sainct Jullien au 

Appendix 279 

conseil general suyvant la publication d'icelluy faicte 
cejoudhuy mattin a lyssue de la parocchielie dudit lieu 
et au lieu ce fere accoustume par Guilliaume Morard 
metral dudict lieu ce a Nous rapportant disantz les 
susnommez scindicz comme au proces pas eulx au nom 
de ladicte communaulte intenre et poursuyvy contre les 
Animaulx brutes vulgairement appelez Amblevins par- 
devant le Seigneur Reverendissime Evesque et Prince de 
Maurianne ou son Official est requis et necessayre syvant 
le conseil a eulx donne par le sieur Fay leur advocat de 
ballier ausdictz Animaulx place et lieu de souffizante 
pasture hors les vigniables dudict lieu de Sainct Jullien 
et de celle qu'il y en puissent vivre pour eviter de manger 
ny gaster lesdictes vignes. A ceste cause ont tous les 
susnommes et aultres y assembles delibere leur offrir la 
place et lieu appelle la Grand Feisse ou elle se treuvera 
souffizante pour les pasturer et que le sieur advocat et 
procureur diceulx Animaux se veuillent contempter 
laquelle place est assize sur les fins dudict Sainct Jullien 
audessus du village de Claret jouxte la Combe descend- 
ant de Roche noyre passant par le Crosset du levant la 
Combe de Mugnier du couchant ladicte Roche noyre 
dessus la Roche commencant a la Gieclaz du dessoubz 
laquelle place sus coufinee centient de quarent a cin- 
quante sesteries ou environ peuplee et garnye de plusieurs 
espresses de boes plantes et feuillages comme foulx 
allagniers cyrisiers chesnes planes et aultres arbres et 
buissons oultre lerbe et pasture qui y est en asses bonne 
quantity a laquelle les susnommes au nom de ladicte 
communaulte Ion offre ny prendre chose que ce soyt moing 
permettre a leur sceu y es tre prins et emporte chose que 
soyt dans lesdictz confins soyt par gens ou bestes saufz 
toutteifoys que ou le passaige des personnes y seroyt neces- 

28o Appendix 

sayre a quelque lieu ou endroit ou Ion ne puisse passer 
par ledict lieu sans fere aulcung prejudice a la pasture 
desdicts Animaulx comme aussi dy pouvoir tirer mynes 
de colleurs et aultres si alcune en y a dequoy lesdictz 
Animaulx ne se peuvent servir pour vivre et par ce que 
le lieu est une seure retraicte en temps de guerre ou 
aultres troubles par ce quelle est gamye des fontaynes 
qui aussi servira ausdictz Animaulx se reservent sy 
pouvoir retirer au temps susdict et de necessite et de 
leur passer contract de ladicte piece aux conditions sus- 
dictes tel que sera requis et en bonne forme et vallable a 
perpetuyte a tel sy que ou le Sieur Advocat et Procureur 
desdicts Animaulx ne ce contenteroyent de ladite place 
pour la substentation et vivre diceulx animaux visitation 
prealablement faicte si elle y exchoict de leur en baillier 
davantage allieurs. Et de laquelle deliberation les 
susnommes Scindics conselliers et aultres Nous ont 
requis acte leur octroyer que leur avons concede audict 
lieu du Parloir damont place publique dudict Sainct 
Jullien en presence de Pierre Reymond de Montriond 
Urban Geymen de Sainct Martin de la Porte et de 
Janoct Poinct de la paroisse de Montdenix tesmoingtz 
a ce requis et a ce dessus assistantz les an et jour que 

L. Prumier 


Anno premisso et die undecima mensis augusti com- 
paruerunt im banco actorum judicialium episcopatus 
Maurianne procuratores ambarum partium qui citra 
prejudicium jurium ipsarum partium prorogaverunt et 

Appendix 281 

continuaverunt assignationem datam ipsis partibus usque 
ad vigesimam presentis mensis augusti. Datum die et 
anno premissis. 


Anno premisso et die vigesima mensis augusti com- 
paruerunt in eodem bancho egregius Petremandus 
Bertrandi et Anthonius Fillioli procuratores partium 
lictigantium quiquidem de consensu eorumdem et citra 
prejudicium jurium partium et actento transitu armiger- 
orum prorogaverunt assignationem ad hodie cadentem 
usque ad diem jovis proximam vigesimam septimam 
hujus mensis Augusti. Datum Maurianne die et anno 


Anno premisso et die jovis vigesimam septimam 
augusti comparuerunt judicialiter coram nobis Vicario 
prefato procuratores ambarum partium quiquidem citra 
derogationem jurium ipsarum partium prorogaverunt et 
continuationem ad hodie cadentem usque ad diem jovis 
proximam tertiam instantis mensis septembris. Datum 
die et anno premissis. 


Anno premisso et die tertia mensis septembris com- 
paruerunt judicialiter coram nobis Vicario general! 
Maurianne prefato egregius Anthonius Fillioli procurator 
Animalium brutorum qui visis testimonialibus productis 
parte dictorum Agentium continentibus assignationem 

282 Appendix 

loci quern obtulerunt relaxare et assignare dictis Animal- 
ibus pro eonim pabulo dicit eumdem locum non esse 
sufificientem nee idoneum pro pabulo dictorum Animal- 
ium cum sit locus sterilis et nuUius redditus. Et ampliando 
omnia et quecumque agitata in presenti processu parte 
dictorum Animalium petit Agentes repelli cum expensis 
et jus sibi ministrari. Hinc et egregius Petremandus 
Bertrandi procurator Scindicorum Sancti Julliani Agent- 
ium dicit locum destinatum et oblatum esse idoneum 
plenum virgultis et parvis arboribus prout ex testimo- 
nialibus oblationis constat et latius constare quathenus 
opus sit offert inherens suis conclusionibus petit jus dici 
et ordinari ac pronunciari. Inde et nos Vicarius generalis 
Maurianne prefatus mandamus nobis remitti acta ad fines 
providendi prout juris assignando partes ad ordinandum. 
Datum in civitate Sancti Johannis Maurianne die et anno 


contra Animalia hin^ta ad formam muscarum volaniia 
colons viridis Supplicata 

Visis actis dictorum Agentium signanter primo me- 
morial! tento in eadem causa sub die vigesima secunda 
mensis aprilis anni 1545 coram spectabili domino Francisco 
Bonivardi jurium doctori — cedula producta parte egregii 
Petri Falconis procuratoris dictorum Animalium in- 
cipiente Ut appareat etc. signata Claudius Morellus — 
tenore supplicationis porrecte parte dictorum Agen- 
tium — tenore monitorii abjecti desuper ipsa supplicatione 

Appendix 283 

sub die 25 aprilis anni predict! millesimi quingentesimi 
quadragesimi quinti signati Daprilis — ordinatione lata in 
eadem causa sub die duodecima mensis junii ejusdem 
anni — testimonialibus visitationis facte per egregium 
Matheum Daprili signatisZ'a/;'-/// — cedula producta nom- 
ine ipsorum Animalium incipiente Visitatio et signata 
Claudius Morellus — allia cedula producta parte dictorum 
Agentium incipiente Etsi rationes etc. signata Petrus de 
Collo — tenore ordinationis late in eadem causa sub die 
sabatti octava mensis mail anni 1 546 signate Michaelis — 
memorial! reassumptionis tento sub die tresdecima mensis 
aprilis anni presentis 1587 — ordinatione lata in eadem 
causa per reverendum dominum Franciscum de Crosa 
antecessorem nostrum sub die decima sexta mensis maii 
anni presentis— supplicatione porrecta parte dictorum 
Agentium signata Franciscus Faeti — litteris obtentis 
virtute dicte ordinationis sub die decima sexta dicti 
mensis — attestatione signata Romanet sub die 24 ejusdem 
mensis maii — cedula producta pro parte dictorum 
Animalium incipiente Approbando etc. signata Petrus 
Rembaudus — allia cedula producta parte Agentium 
signata Franciscus Faeti incipiente Etiam si cuncta etc. — 
allia cedula producta pro parte Animalium incipiente 
Licet miiltis etc. signata Petrus Rembaudus — ^memoriali 
tento sub die vicesima quarta mensis jullii proxime fluxi 
— testimonialibus signatis Prunier sumptis coram Vice- 
castellano Maurianne sub die penultima mensis junii 
anni presentis continentibus declarationem loci quem 
dicti Agentes obtulerunt relaxare pro pabulo dictorum 
Animalium — memoriale ad jus tento coram eodem 
domino Vicario antecessore nostro sub die tertia mensis 
septembris proxime fluxi — ceterisque videndis diligenter 

284 Appendix 

Nos-Vicarius generalis Maurianne subsignatus ante- 
quam ad dififinitivam procedamus dicimus et ordinamus 
in primis et ante omnia esse inquirendum super statu 

loci oblati p 

quern locum 


mensem ut f. . . . . 

et nobis rem 

fuerit provid 

Mermetus vis 


in civitate S 

die decima 

anno domini 

octuagesimo sep 

Petremandi Bertr 

dictorum Scind 

et egregii 

dictorum Animal. 



facit die et 

(pro visitatione III flor) 

locus sigilli. 

Solverunt Scindici Sancti Julliani inc'luso processu 
Animalium sigillo ordinationum et pro copia que com- 
petat in processu dictorum Animalium omnibus inclusis 
XVI flor. 

Item pro sportulis domini Vicarii III flor — 20 decem- 
bre 1587. 

Appendix 285 

Published by Ldon Mdnebrda in the appendix to his 
treatise : De rOrigtne, de la forme et de V esprit des 
jugements rendus au Moyen-dge centre les Animaux, 
Chambery, 1846. Cf. Mkmoires de la Soci'et'e Roy ale 
Acadhnique de Savoie, Tome xii. pp. 524-57, where it 
first appeared. 

According to M. J. Desnoyers {Recherches sur la 
coutume d'exorciser et d excommunier les insectes et autres 
aniniaux nuisibles b. r agriculture, p. 15), it is still the 
custom, in Provence, Languedoc, le Bordelais, and other 
provinces of France, for the peasants to ask the country 
curates for prayers, sprinklings with holy water, con- 
secrated boughs, and extraordinary processions, for the 
purpose of expelling noxious insects from the vineyards 
and warding off disease from the grapes and the silk- 
worms. These ceremonies are accompanied with ad- 
jurations and maledictions. In Protestant lands official 
days of fasting and prayer are supposed to produce the 
same results. 

The form of exorcism given by an Antwerp canon, 
Maximilian d'Eynatten, in his Manuale Exorcismorum, is 
as follows : — " Exorcizo et adjuro vos, pestiferi vermes, 
per Deum patrem omnipotentem ^, et per Jesum 
Christum *^ filium ejus Dominum nostrum, et Spiritum 
Sanctum ►{« ab utroque procedentem, ut confestim re- 
cedatis ab his campis, pratis, hortis, vineis, aquis, si Dei 
providentia adhiic vitam vobis indulgeat, nee amplius 
in eis habitetis, sed ad ilia ac talia loca transeatis, ubi 
nullis Dei servis nocere poteritis. Vobis, si per male- 
ficium diabolicum hie estis, pro parte divinae majestatis, 
totius curiae coelestis, necnon ecclesiae hie adhiic 
militantis, impero, ut deficiatis in vobisipsis, ac de- 

286 Appendix 

crescatis, quatenus reliquiae de vobis nullae reperiantur, 
nisi ad gloriam Dei at ad usum et salutem humanum 
conducibiles. Quod praestare dignetur qui venturus est 
judicare viros et mortuos et saeculum per ignem, Resp. — 
Amen." Thesaurus Exorcismorum, Coloniae, 1626, p. 

Appendix 287 




II ne favt pas mdpriser les Monitoires, veu que c'est 
vne chose grandement importante, portant auec soy le 
glaiue, le plus dangereux dont nostre Mere sainte I'Eglise 
se sert, qui est rExcommunication, qui taille aussi bien 
le bois sec que le verd, n'^pargnant ny les viuans, ni les 
morts ; et ne frappe pas seulement les Creatures raison- 
nables, mais s'attache aux irraisonnables, tels que sont 
les animaux. Les exemples en sont fr^quens, pour 
preuue de cette verity. Car on a veu en plusieurs en- 
droits qu'on a excommuni^ les bestioles et insectes, qui 
apportoient du dommage aux fruits de la terra, et 
obeissans aux commandemens de I'Eglise se retiroient 
dans le lieu ordonn^ par la sentence de I'Euesque qui 
leur formoit leur proces. Au Siecle pass^ il y auoit telle 
quantity d'Anguilles dans le Lac de Geneue, qu'elles 
gastoient tout le Lac : De sort que les Habitans de la 
Villa et enuirons, recoururent k I'Euesque pour les Ex- 

1 The first part of this treatise, consisting of seventeen chapters, 
discusses the different kinds of " monitoires " and their applications. 
Only the second part, describing the legal procedure, is here 

288 Appendix 

comraunier, ce qu'ayant est^ fait, le Lac fut deliur^ de 
ces animaux. 

Du temps de Charles Due de Bourgogne fils de 
Philippe le Bon, il y eut telle quantity de Sauterelles en 
Bresse, en Italie qu'elles mirent presque la famine dans 
tout le Mantoiian, si on n'y e&t apport^ du secours par 
I'Excommunication, et de ce nous parle Altiat dans ses 
Embldmes, sous I'intitulation nihil religui. 

Scilicet hoc deerat post tot mala denique nostris, 
Locustce vt raferent, quidquid inesset agris. 

Vidimus innumeras Euro Duce tendere turmas ; 
Qualia non Athilcs, Castrave Cersis erant. 

Ha f<enum milium farra omnia consumpserunt ; 
Spes in Augusta est, slant nisi vota super. 

On raconte en la vie de S. Bernard, qu'il se leua vne 
si grande quantity de Mouches, d'vne Eglise qu'on auoit 
basti k Loudun, que par le myen du bruit qu'elles 
faisoient, elles emp^choient a ceux qui entroient de prier 
DiEV, ce que voyant le S. Personage il les Excommunia, 
de sorte qu'elles tomberent toutes mortes ayant couuert 
le paud de I'Eglise. 

Nous lisons qu'en I'ann^e 1541, il y eut vne telle 
quantity de Sauterelles en Lombardie, qui tomberent 
d'vne nuee ; qu'ayant mangd les fruits de la terre, elles 
causerent la famine en ces lieux-la. Elles estoient longues 
d'vne doigt, grosse teste, le ventre remply de vilenie et 
ordure ; lesquelles estant mortes infecterent I'Air de si 
mauuaises odeurs, que les Courbeaux et autres animaux 
carnassiers ne les pouuoient supporter. 

On dit aussi qu'en Pologne il y eut aussi telle quantity 
de ces animaux au commencement sans aisles, et apres 
ils en eurent quatre, qu'ils couuroient deux mille, et 
d'vne coud^e d'auteur, et tellement dpaisses qu'en volant 
elles leuoient la vetie de la clartd du Soleil, ces animaux 

Appendix 289 

firent un ddgat non-pareil aux biens de la terre, et ne 
purent estre chassis par autre force ny Industrie, que par 
la malediction Ecclesiastique. 

Saint Augustin raconte au Liure de la Cit^ de Dieu, 
Chap, dernier, qu'en Afrique il y eut telle quantity de 
Sauterelles, et si prodigieuses, qu'ayans mangd tons les 
fruits, feiiiles, et decrees des arbres iusques k la racine, 
elles s'dleuerent comme vne nuee ; et tombfes en la Mer, 
causerent vne peste si forte, qu'en vn seul Royaume il y 
niorut huit cens mille Habitans. 

Du temps de Lotaire troisieme Empereur apres Charle- 
magne, il y eut dans la France des Sauterelles en nombre 
prodigieux, ayans six aisles auec deux dents plus dures 
que de pierre, qui couurirent toute la terre, comme de la 
neige, et gasterent tous les fruits, arbres, h\6, et foins, et 
tels animaux ayans est6 jettds k la Mer ; il s'ensuiuit 
vne telle corruption en I'Air, que la peste rauageat 
grande quantity de monde en ce pays Ik. Voilk quantity 
d'exemples quo nous font voir le dommage que nous 
apportent ces bestioles et insectes. Maintenant voyons 
comme on leur forme leur procds afin de s'en garantir 
par le moyen de la malediction que leur donne I'Eglise. 

Premierement, sur la Requeste presentde par les 
Habitans du lieu qui soufifrent le dommage, on fait in- 
former sur le ddgat que tels animaux ont fait, et estoient 
en danger de faire, laquelle information rapportde, le Juge 
Ecclesiastique donne vn Curateur a ses bestioles pour se 
presenter en jugement, par Procureur, et la deduire 
toutes leurs raisons, et se defendre centre les Habitans 
qui veulent leur faire quitter le lieu, oil elles estoient, et 
les raisons veues et considerdes, d'vne part et d'autre il 
rend sa Sentence. Ce que vous verrez clairement par le 
moyen du plaidoyer suiuant. 

290 Appendix 

Requeste des Habitans 

Svpplie hvmblement N. Exposans comme riere le 
liieu de N. il y a quantity de Souris, Taupes, Sauterelles 
et autres animaux insectes, qui mangent les bids, vignes 
et autres fruits de la terra, et font vn tel ddgat aux bids, 
et raisins qu'ils n'y laissent rien, d'oti les pauures 
supplians souffrent notable prejudice, la prise pendante 
par racine estant consommde par ces animaux, ce qui 
causera vne famine insupportable. 

Qui les fait recourir a la Bontd, Clemence et Miseri- 
corde de Dieu, a ce qu'il vous plaise faire en sorte que 
ces animaux ne gastent, et mangent les fruits de la terre 
qu'il a pleu k Dieu d'enuoyer pour I'entretient des 
hommes, afin que les supplians puissent vacquer, auec 
plus de deuotions au seruice Diuin, et sur ce il vous 
plaira pouruoir. 

Plaidoyer des Habitans 

Messievrs, ces pauures Habitans qui sont a genouy les 
larmes k I'ceil, recourent a votre Justice, comme firent 
autre-fois ceux des Isles Maiorque et Minorque, qui 
enuoyerent vers Aug. Cesar pour demander des Soldats, 
afin de les defendre, et exempter du rauage que les Lapins 
leur faisoient : vous auds des armes plus fortes que les 
Soldats de cette Empereur pour garantir les pauures 
supplians de la faim et necessity de laquelle ils sont 
menaces, par le rauage que font ces bestioles, qui 
n'dpargnent ny bid, ny vignes ; rauage semblable i celuy 
que faisoit vn Sanglier, qui gasta toutes les Terras, 
Vignes, et Oliuiers du Royaume de Calidon, dont parle 
Homere dans le premier Liure de son Hiliade, ou da ce 
Renard qui fut anuoyd par Themis &. Thebes, qui 

Appendix 291 

n'dpargnoit ny les fruits de la terre, ny le bestail attaquant 
les Paysans mesmes. Vous sgauez assez les maux que 
raporte la faim, vous a.\i6s trop de douceur, et de Justice 
pour les laisser engager dans cette misere qui contraint 
k s'abandonner k des choses illicites, et cruelles, nee enim 
rationem patitur, nee vlla aequitate mitigatur : nee prece 
vlla fleetitur esuriens populus : Tdmoins les Meres dont il 
est parld au quatrifeme des Roys, qui pendant la famine 
de Samarie, mangerent les enfans. Tune de 1' autre. Da 
filium tuum, vi eomedamus hodie, et filium meum 
comedimus eras : Coximus ergo filium meum, et comedimus. 
Quid turpe non eogit fames, sed nihil turpe, nihilve, vetitum 
esuriens credit, sola enim cura est, vt qualicumque sorte 
iuuetur. La mort qui vient par la famine est la plus cruelle 
entant qu'elle est pleine de langueurs, ddbilitds et foib- 
lesses de cceur, qui sont autant de nouuelles, et diuerses 
especes de mort. 

Dura quidem miseris, mors est, mortalibus omnis. 
At perijsse fame. Res vna miserrima longi est. 

Et Auian Marcellin dit. Mortis grauissimu?n genus, et 
vltimum malorum fame perire. le crois que vous aurds 
compassion, de ce pauuve Peuple, si on vous le repre- 
sente, par aduance en I'estat qu'il serait reduit si la faim 

Hirtus erat crinis, cana lumina, pallor in ore, 
Labia incana siti, scabri ntbigine denies. 
Dura cutis, per quam spectari viscera possunt. 
Ossa sub incuruis extaiant arida lumbis ; 
Ventus erat, pro ventre locus, 

Les Gabaonistes, reuestus d'habits dechir^s, et des 
visages affam^s, auec de contenances toutes tristes, firent 
pitid et compassion au grand Capitaine louse, et en c^t 
estar obtiendrent grace et misericorde. 

292 Appendix 

Les Informations et visites qui ont estd faites par vos 
commandements, vous instruisent suffisamment du d^gat 
que ces animaux ont fait. Ensuite dequoy on a fait les 
formalitds requises et necessaires, ne restant plus main- 
tenant que d'adjuger les fins et conclusions prises par la 
Requeste des demandeurs, qui sont ciuiles et raison- 
nables, sur lesquelles il vois plaira de faird reflection, et 
k cA effet leur enioindre de quitter le lieu et se retirer 
dans la place qui leur sera ordonn&s en faisant les 
execrations requises et necessaires, ordonn^es par nostra 
Mere Sainte I'Eglise, k quoy les pauures demandeurs 

Plaidoyer pour les Insectes 

Messievrs, ddpuis que vous m'au^s choisi pour la 
defense ces pauures bestioles, il vois plaira que je 
remontre leur droit, et fasse voir que les formalit^s, qu'on 
a faites contre elles, sont nuUes : m'dtonnant fort de la 
fagon qu'on en vse, on donne des plaintes contre elles, 
comme si elles auoient commis quelque crime, on fait 
informer du d^gat qu'on pretend qu'elles ayent fait, on les 
fait assigner par-deuant le Juge pour respondre, et comme 
on sgait qu'elles sont muettes, le Juge voulant suppleer k 
ce defaut, leur donne vn Aduocat, pour representer en 
Justice les raisons qu'elles ne peuuent deduire ; et 
parceq; Messieurs, il vous a pleu de me dormer la 
libertd de parler pour les pauures animaux, je diray pour 
leur defence en premier lieu. 

Qve I'adiovrnement laxd contr'elles est nul comme laxd 
contre des bestes, qui ne peuuent, ny doiuent se presenter 
en jugement ; la raison est, que celuy qu'on appelle, doit 
estre capable de raison, et doit agir librement, pour pouuoir 
connoitre vn delict. Or est-il que les animaux estans 

Appendix 293 

priuds de cette lumiere qui a estd donn^e au seul homme, 
il faut conclurre par necessaire consequence, que telle 
procedure est nuUe ; cecy est tird de la Loi premieree, ff. 
si quadrupes, pauper feciss. dicat ; et voyci las mots. Nee 
enim potest animal, iniuriam fecisse, quod sensu caret. 

La seconde raison est, que Ton ne peut appeller per- 
sonne en jugement sans cause ; car autrement celuy qui 
fait adjourner quelqu'vn sans raison, il doit subir la peine 
portde sous le tiltre des instituts de pan. tern, litig. Mais 
ces animaux ne sont obliges par aucune cause, ny en 
aucune fagon, nan tenentur enim ex contractu, estans in- 
capables de contracter, neque ex quasi contractu, neque ex 
stipulatione, neque ex pacto, moins ex delicto, seu quasi ; 
parce que comme il a estd dit cy-deuant, pour commettre 
vn crime, il faut estre capable de raison, qui ne se rencon- 
tre pas aux animaux, qui sont priuds de son vsage. 

De plus dans la Justice, on ne doit rien faire qui ne 
porte coup, la Justice en cela imitant la Nature ; laquelle, 
comme dit le Philosophe, ne fait rien mal k propos, Deus 
enim, et Natura nihil operantur frustra. Je laisse a pen- 
ser quest-ce qu'on pretend de faire ayant adjourn^ ces 
bestioles, elles ne viendront pas respondre ; car elles sont 
muettes, elles ne constitueront pas des Procureurs, pour 
defendre leur cause, moins leur dormeront des memoires, 
pour deduire en jugement, leur raison : Car elles sont 
priu^es de raisonnement, en sorte que tel adjournement 
ne pouuant auoir aucun effect, est nul. Si done I'adjourne- 
ment qui est la base de tous les actes judiciels est nul, le 
reste comme en dependant, ne pourra subsister cum enim 
principalis causa non consistat, neque ea quce consequuntur 
locum habent. 

On dira peut-estre que si bien tels animaux, ne peuuent 
constituer vn Procureur, pour la defense de leur droict, 

294 Appendix 

et instruction de leur cause que le Juge de son office le 
peut faire, et partant que le fait du Juge, est le fait de la 
partie. A cela on respond qu'il est vray lors qu'il le fait 
selon la disposition du droict, In administratione sua. iuris- 
dictionis, mais non pas en ce cas, ou la partie n'en pouuait 
constituer, le Juge aussi, ne le peut faire, cecy est ddcid6 
par la glose de la Loy 2 ff. de administrat. res ad Civit. 
pertinent, et pour preuue de cette proposition faite \ propos 
L'axiaume qui dit quod directl fieri prohibetur, per indirec- 
tum concedi non debet, cap. tuae de procuratoribus, gloss, c. 
I . de consanguinibus, et affinibus. Mais ce que je treuue plus 
estrange, on pretend faire prononcer contre ces panares 
animaux vne Sentence d'Excommunication, d' Anathema 
et malediction, et k quel sujet vser contre des bestioles 
qui sont sans defense, du plus rigoureux glaiue que 
I'Eglise aye en sa main, qui ne punit et ne chatie que les 
Criminels ; ces animaux estans incapables de faire faute, 
ni pechd, parce que pour pecher il faut auoir la lumiere 
de la raison laquelle dicernant le bien d'auec le mal, nous 
monstre ce qu'il faut suiure, et ce qu'il faut fuir, et de plus 
il faut auoir la libertd de prendre I'vn et laisser I'autre. 

On vovdra peut-estre dire qu'elles ont manqu^ en ce 
qu'elles ne se sont presentees ayant estd adjurn^es, et 
partant que la Contumace et defaut estant vn crime, on 
peut faire rendre contre elles Sentence Contumaciale, \ 
cause de leur desobeissance : Mais ^ cela on respond 
qu'il ny a point de Contumace, ou il n'y a point d'ad- 
journement, ou du moins qui soit valable quia paria sunt 
non esse citatum, vel non esse legitimk citatum, ita dd. com- 
muniter Bartol., in I. ea quae C. quomodo, etc. 

De plus, si on prend garde k la definition de I'Excommu- 
nication, on verra qu'on ne peut prononcer teUe Sentence 
contre ces animaux : car I'Excommunication est dite extra 

Appendix 295 

Ecclesiam positio, vel I qualibei communione, vel i quolibet 
kgitimo actu separatio. Tellement que tels animaux ne 
peuuent estre dechassds de I'Eglise, n'y ayans jamais 
est^, d'autant qu'elle est pour les hommes qui ont I'ame 
raisonnable, non pas pour les brutes, qui ne sont doii^es 
d'aucune raison, et I'Apostre S. Paul ad Corinth. 5 dit 
qubd de its quae forts sunt nihil ad nos quoad Excommu- 
nicationem, quia Excommunicare non possumus, I'Excom- 
munication afficit animam non corpus, nisi per quandam 
consequentiam, cuius Medicina est, cap. i, de sentent. Ex- 
comm. in 6. C'est pourquoy Tame de ces animaux, n'es- 
tant immortelle, elle ne peut estre touchde par telle Sen- 
tence, quae vergit in dispendium aeternae salutis. 

L'autre raison est, quod facienti actum permissum non 
imputatur, id quod sequitur ex illo, licet consecutiuum sit 
repugnans statui suo cap. de occidendis 23 q. 5 cap. sicut 
dignum extra de homicid. Ces animaux font vn acte per- 
mis mesme par le droit Diuin. Car il est dit dans la 
Genese fecit Deus bestias terrae iuxta species suas, iu- 
menta, et omne reptile terrae in genere suo dixitque 
Deus, ecce dedi vobis, omnem herbam afferentem semen 
super terrain, et vniuersa ligna, quae habent in semetipsis 
sementem generis sui, vt sint vobis in escam ; et cunctis 
animalibus terrae, omnique volucri coeli, vniversis quae 
mouentur in terris, et in quibus est anima viuens ; vt habeat 
ad vescendum. Que si les fruits de la terre ont est^ faits 
pour les animaux et pour less hommes, il leur est permis 
d'en manger et prendre leur nourriture, aussi Cic^ron dit 
au premier des OSicts principio generi omnium animantium 
est a natura attributum, vt se vitam, corpusque tueantur, 
quaeque ad vescendum necessaria sunt inquirant. Par ces 
raison on voit qu'ils n'ont commis aucun delict, ayant fait 
ce qui leur est permis par le droit Diuin et de Nature, et 

296 Appendix 

par ainsi ils ne peuuent estre punis, ny maudis, cum etiam 
creaturae intellettuali, et rationali delinquenti seu damnum 
afferent!, eo quhd secundum solitumfacit ; non est Angela 
licitum makdicere, multo miniis erit licitum homini, veu 
qu'on lit dans I'Epistre de S. lude, cum altercaretur 
Michael cum Diabolo de corpore Moysis non fuit ausus 
makdicere Cap. St igitur Michael, 23. q. 3. S. Thomas 2. 
2. q. 76. dit que de donner des maledictions aux choses 
irraisonnables, estans Creatures de Dieu s'est pech^ de 
blasphemer et de les maudire, les consid^rans en eux 
mesmes, est otiosum, et vanum, et per consequens illicitum. 
Que si toutes ces raisons ne vous touchent, peut-estre 
cette-cy vous f^ra donner les mains, et persuadera h. vostre 
Esprit, qu'on ne peut donner aucune sentence d'Excom- 
munication contre elles ny jetter aucun Anathema. Car 
pronongant telle Sentence s'est s'en pendre k Dieu, qui 
par sa justice le enuoye pour punir les hommes et chastier 
leurs pdch^s, immitamque in vos bestias agri quae consu- 
mant vos, et pecora vestra, et ad paucitatem cuncta redigant, 
pouuant dire maintenant ce que Dieu a dit auant le De- 
luge omnis Caro corrupit viam suam. Et Guide en ses 
Metamorphoses voyant que le vice auoit pris le haut bout, 
Triomphant, et faisant des conquestes par tout, au con- 
traire la vertu estoit abaissde, exilee, et reduite en tel estat 
qu'elle ne treuuoit aucune demeure parmy les Hommes. 

Protinus irrupit vena prioris in ceuum, 

Omne nefas, fugere pudor, verumque fidisque. 

In quorum subiere locum, fraudisque, dolusque. 

InsidicEque, et ars, et amor sceUratus habendi, 

Uiuitur ex rapto, non hospes ab hospite tutus, 

Non socer h genera, fratrum quoqui gratia rara est, 

Imminet exitio vir, conjugis, ilia viariti 

Liuida terribiles miscent aconitos nouercce 

Filius ante diem, patrios inquirit in annas, 

Uita iacet pietas, et virga ccede madentes. 

Ultima Cikstum, Terras Astrea reliquit. 

Appendix 297 

Par les quelles raisons on voit, que ces animaux sont 
en nous absolutoires, et doiuent estre mis hers de Cour 
et de Proems, h quoy on conclud. 

RepUque des Habitans 

Le principal motif qu'on a rapportd pour la deffense de 
ces animaux, est qu'estans priuds de I'vsage de la raison, 
ils ne sont sommis "k aucunes Loix, ainsi que dit le Chapi- 
tre mm mulier i. 5. q. 1. la /. congruit in fin. et la Loix 
suiuante. ff. de off. Praesid. sensu enim carens non subjiciiur 
rigori Juris Ciuilis. Toutesfois, on fera voir que telles 
Loys ne peuuet militer au fait qui se pr^sente maintenant 
k juger, car on ne dispute pas de la punition dVn delict 
commis ; Mais on tasche d'empescher qu'ils n'en com- 
mettent par cy-apres, et partant ce qui ne seroit loisible k 
vn crime commis, et permis afin d'empescher ne crimen 
committatur. Cecy ce preuue par la Loy congruit sus 
cit^, oil il est dit qu'on ne peut pas punir vn furieux et 
insensd du crime qu'il a commis pendant sa fureur, parce 
qu'il ne scait ce qu'il fait, toutesfois on le pourra renfermer 
et mettre dans des prisons, afin qu'il n' offence personne 
et pour faire voir combien cet Axiome est vray, ie me sers 
de I'authoritd du Chapitre omnis vinusque sexus de poeni- 
tent. et remiss, ou il est dit qu'on peut deceller ce qu'on 
a pris si on ne la pas execute, afin d'y rapporter du remede, 
cette proposition est confirmee par la glose in cap. tua nos 
ext. de sponsal. qui dit qui si quelqu'vn s'accuse d'auoir 
Fianc^ une fille, par parolles de present ; on pourra de- 
celler ce qui a estd dit, afin que le Mariage se consume. 
La raison est, qu'ayant espousd telle fille, si on nie de 
I'auoir fait, et on refuse d'accomplir le Mariage, Videtur 
esse delictum successiuum, et durare vsque illam acceperit, vt 
ergo tali delicto obuieiur. II este loisible de publier ce 

298 Appendix 

qu'on a pris secretement Estant vray par les raisons de- 
duites qu'on a peu adjourner, tels animaux, et que I'ad- 
journement est valable, d'autant qu'il est fait afin qu'ils 
ne rapportent du dommage d'ores en auant, non pas pour 
les chastier de celuy qu'ils ont fait. II reste maintenant 
de respondre k ce qu'on a aduancd a sgauoir que tels 
animaux ne peuuent estre Excommunids, Anathematises, 
maudis ny execrds ; k cela il semble que se serait doubter 
de la puissance que Dieu a donnd k I'Eglise, I'ayant fait 
Maitresse de tout I'Vnivers, comme sa chere Espouse, 
de qui on peut dire, auec le Psalmiste, omnia subiecisti sub 
pedibus ejus, oues, et boues et omnia qucB mouentur in aquis, 
et estant conduite par le S. Esprit, ne fait rien que sage- 
ment, et s'il y a chose ou elle doiue monstrer son pouuoir, 
c'est k la Conservation du plus parfait ouurage de son 
Espoux ; a sgauoir de I'Homme, qu'il a fait k son Image 
et semblance, faciamus fiominem, ad imaginem, et simili- 
tudinem nostram et luy a donn^ le Gouuernement de 
toutes les choses crdes crescite et multiplicamini et domina- 
mini piscibus maris, volatilibus cxli, et omnibus animantibus 
Cosli ; Aussi Pline en son Liure premier de I'Histoire 
naturelle dit guod causA hominis, videiur cuncta alia 
genuisse natura. Les Juriscon suites sont d'accord, quod 
hominis gratia, omnes fructus d natura comparati sunt, I. 
pecudum. ff. de vsur. et §. partus ancillarum. instit. de rer. 
diuis. et Guide descriuant I'excellence de I'Homme parle 
de la sorte, 

Pronaque, cum spectenl animalia caetera terras 
Os homini sublime dedit, ccelumque tueri 
lussil, et erectos ad sidera tollere vultus. 

et vn autre Poete, 

Nonne vides hominem, vt Celsos ad sidera vultus 
Sustulerit Deus, ac sublimia finxerit ora. 
Cum fecudes, volucrumque genus, formasque ferarum, 
Segnem, aique obsccsnam, passuri strauisset in aluum. 

Appendix 299 

Picus Mirandulanus, en vne de ses Oraison parlant de 
la grandeur de I'Homme dit hominem tantce excelkntiae, 
ac sublimitatis esse, vi in se omnia continere dicatur, vtt 
Deus, sed diuersimodi, Deus enim omnia in se continet, vtt 
omnium medium principium, homo verb, in se omnia con- 
tinet, vti omnium medium, quo fit^ vt in Deo sint omnia 
meliore nota, qucLm in seipsis, in homine inferiora nobiliort 
sint conditione, superiora autem degenerent sicut aer, ignis, 
aqua et terra per verissimam proprietatem natures suce, in 
crasso hoc, et terreno, hominis corpore, quo nos videmus, hinc 
etenim nulla creata substantia seruire dedignatur, hinc 
Terra, et Elementa, huic bruta prceesto sunt, famulantur, 
hinc militat ccelum, hinc salutem bonumque procurant 
Angelicas mentes. 

Et se seroit vne chose, si j'ose dire hors de raison, que 
celuy pour qui la terre produit tous ces fruits, en fut 
priud, et que de chetifs animaux, prissent leur norriture, 
k I'exclusion de THomme pour qui ils sont destines 
de Dieu. C'est sur ce sujet qu'il dit Increpabo pro ie 
locustas dummodh posueris de fructibus iuis in horrea 

Et pour responce k ce qu'escrit S. Thomas qu'il n'est 
loisible de maudire tels animaux, si on les considere en 
eux mesmes, on dit qu'en I'espece qu'on traitte, on ne 
les considere pas, comme animaux simplement : mais 
comme apportans du mal aux Hommes, mangeans et 
ddtruisans les fruits qui seruent k son soutient, et 

Mais a quoy, nous arrestons-nous depuis qu'on voit 
par des exemples infinis que quantity de saints Person- 
nages, ont Excommunid des animaux apportans du 
dommage aux Hommes. 11 suffira d'en rapporter vn pour 
tout, qui nous est cogneu, et familier, que nous voyons 

300 Appendix 

continuellement, k sgauoir dans la ville d'Aix, oh S. 
Hugon Euesque de Grenoble Excommuniat les serpens, 
qui y estaient en quantity k cause des bains chauds de 
souffre, et d'Alun, qui faisaient vn grand dommage aux 
Habitans de ce lieu par leur piqueures. De sorte que 
maintenant si bien les Serpens piquant, quelquVn dans 
le lieu, et confins ; Telle piqueure ne fait aucun mal, le 
venin de ces bestes estant arrestd, par le moyen de telle 
Excommunication, que si quelqu'vn est piqud hors de ce 
lieu par les mesmes Serpens, la piqueure sera venimeuse 
et mortelle ainsi qu'on a veu par plusieurs fois. le 
laisse k part quantity de passages de I'Escripture par 
lesquels on voit que Dieu a donnd des maledictions aux 
choses inanimdes, et Creatures sans raison, ainsi qu'on 
pourra voir au Leuitic. Ch. 26. et Deutheronome 27. 
Genes. 2. il maudit le Serpent Maledictus es, inter omnia 
animantia, et bestias Terrce. 

De dire, qu'excommuniant, Anathematisant tels 
animaux, s'est s'en prendre k Dieu, qui les a enuoye 
pour le chastiment des hommes. A cela on respond 
que ce n'est pas s'ens prendre a Dieu que de recourir a 
I'Eglise, et la prier de diuertir, et chasser le mal, qu'il a 
pleu k sa Diuine Majestd de nous enuoyer, a cause de 
nos fautes et pechds ; au contraire c'est vn acte de 
Religion que de recourir k elle, lors q'on voit que Dieu 
leue sa main pour nous frapper. 

Conclusion du Procureur Episcopal 

Les defenses rapportdes par I'Aduocat de ces animaux, 
centre les Conclusions prises par les Habitans sont 
considerables qui meritent qu'on les examine meure- 
ment; car il ne faut pas letter le carreau d' Excommuni- 
cation a la vol^e, et sans sujet, estant vn foudre qui est si 

Appendix 301 

agissant, que s'il ne frappe celuy contre lequel on le 
jette, il embrase celuy qui le lance. Le discours de cdt 
Aduocat est appuy^ sur la regie de Droict, qui dit, qui 
iussu iudicis aliquid facit, panam non mereiur, et vraye- 
ment c'est le luge des luges, qui ne laisse rien d'impuny, 
et qui distribue les peines a I'dgal des offences, sans 
auoir dgard k personne, de qui les jugemens nous sent 
incognus, gu&m ahscondita iudicia Dei, inuesiigabiles via 
ejus. C'est vne Mer profonde d'ont on ne pent d^couurir 
le fonds. De dire pourquoy il n enuoy^ ces animaux, qui 
mangent les fruits de la terre : Ce nous sont lettres 
closes ; pent estre veut-il punir ce Peuple, pour auoir fait 
la sourde oreille aux pauures qui demandoient a leurs 
portes, estant vn Arrest infaillible, que qui fait aux 
pauures la sourde oreille, attende de Dieu la pareille. 

Ceux qui donnent I'aumosne sont totijours sous la 
protection Diuine, aussi S. Gierosme dit non memini me 
legisse mala morte mortuum, qui libenter opera charitatis 
exercuit, habet enim multos intercessores, et impossibile est, 
multorum preces non exaudiri, et S. Ambrojse parlant de 
ceux qui donnent I'aumdne aux pauures, si non pauisti 
necasti, pascendb seruare poteras, de mesmes la Loy de lib. 
agnoscend. repute pour homicide celuy qui denie, et 
refuse les alimens a ceux qui en ont besoin, et le 
Prophete Ezechiel, c. 18. parlant de la recompense, que 
Dieu a destinde a ceux qui font du bien aux pauures, qui 
panem suum esurienti dederit et nudum operuerit vestimento, 
Justus est, et vitd, viuet ; Lesquelles paroles Eusebe 
expliche de la sorte, fregisti esurienti panem tuum, in 
Coelo vitae pane qui Christus est satiaberis, hie peregrinis 
domus tua patuit, in domo Angelorum, Ciuis efficieris tu 
hie trementia membra destijsti, illic liberaberis ab illo 
frigore, in quo erit fletus, et stridor dentium. 

302 Appendix 

C'est vn acte de Charity, que d'assister le pauures, 
frange esurienti panem tuum et egenos, vagosque indue in 
domum tuam, cum videris nudum, operi eum, et carnem 
iuam ne despexeri, dit losue c. 38. aussi la recompense 
est asseurde, ainsi qu'escrit S. Mathieu cap. 25. venite 
Benedicti patris mei, possidete paratum vobis regnum a 
constitutione mundi ; esuriui enim, et dedistis mihi man- 
ducare ; sitiui, et dedistis mihi bibere ; hospes eram et 
CoUegistis me ; nudus eram, et operuistis me, amen dico 
vobis quod vni fecistis ex fratribus meis minimis, mihi 
fedstis. C'est vne ceuure de Misericorde d'auuoir 
compassion de son prochain, ainsi que dit S. Ambroise 
lib. 2. off. cap. 28. hoc maximum Misericordim, vt 
compatiamur alienis calamitatibus necessitates aliorum, 
quantum possumus iuvemus, et plus inter dum quam possu- 
mus THospitalit^ est recommand^e par S. Paul hospitali- 
tatem nolite obliuisci, per hanc enim placuerunt quidam, 
Angelis hospitio receptis, et S. Augustin disce Christiane 
sine discretione exhibere hospitalitatem, nefortl cui domum 
clauseris, cui humanitatem negaueris ipse sit Christus. 
L'ordinairerecompence qui suit I'aumosne est le centuple, 
honora Dominum de tua substantia, et deprimitiis omnium 
fructuorum tuorum de pauperibus, et implebuntur horrea 
tua saturitate et vino torcularia tua redundabunt. Les 
abismes de la Diuinitd ne sMpuisent jamais, pour donner, 
et le sage Salomon, fceneratur Domino qui miseretur 
pauperi, et vicissitudinem suam reddet, S. Paul aux Cor- 
inthians Chap. 2. parle de la sorte, qui administrat 
semen seminanti, et panem ad manducandum prcestabit, 
et multiplicabit semen suum. 

Seroit-ce point h. cause des irreuerences qu'on commet 
aux Eglises pendant le service Diuin, ou sans aucun 
dgard &, la presence de Dieu, conduntur stupra, tractantur 

Appendix 303 

lenodnia, adulteria meditantur, frequentiils deniqul ; in 
adituorum cellulis qubd in ipsis lupanaribus flagrans libido 
defungitur, pour parler auec TertuUien ; car c'est \k bien 
souuent oil se donne le mot, 011 se prennent les assigna- 
tions, oil se lancent les meschantes oeilliades, Impudicus 
oculus, impudici cordis est nuncius, dit S. Augustin. Sur 
tous les arbres et plantes, qui estaient en ^gypte, le 
pdchd dtait consacrd k Harpocrates qui prenait soin du 
langage qu'on deuait tenir aux Dieux, parce que le fruit 
du pechd ressemble au coeur, et la feuille k la langue, 
inferant de \k que ceux qui allaient aux Temples, 
deuoient penser saintement honestement, et sombrement 

Numa Pompilius ne volut pas qu'on assistat au culte 
Diuin par maniere d'aquit : Mais qu'en quittant toutes 
choses, on y employat entierement sa pensde, comme au 
principal acte de la Religion, et d'actions enuers les 
Dieux, ne voulant pas mesme pendant le Seruice, qu'on 
entendit parmy les Rues aucun bruit, et lors que les 
Prestres faisoient le Sacrifices et ceremonies, il y auoit 
des Sergens qui crioent au Peuple que I'on se tue, lais- 
sant toute autre ceuvre pour estre attentif au Culte. 

Que si les Payens ont estd si exats en leur fausse 
Religion au Culte de leurs Idoles, et imaginaires Diuin- 
itds, nous qui sommes Chrestiens, et auons la conoissance 
du vray Dieu ; quel respect ne luy deuons-nous pas porter 
dans les Eglises, pendant le S. Sacrifice de la Messe et 
autres Offices Diuins. 

Mais si bien Dieu est luste iusticier, qui ne laisse rien 
impuni toutesfois la Justice ne tient pas si fort le haut 
bout, que la misericorde, n'y treuue place. II est autant 
Misericordieux que luste, et s'il enuoit quelques aduer- 
sit^s aux pecheurs et les visite par quelque coup de fouet : 

304 Appendix 

C'est pour les aduertir de faire penitence, par le moyen 
da laquelle ils puissent ddtoumer son courroux, at iuste 
vengeance, et par ce moyen, ils se puissent reconcilier 
auec luy, at obtenir ses graces, et pardon de leurs fautes 
et pechds. 

Nous voyons cas habitans la larme h. I'ceil, qui 
demandant pardon d'vn cceur contrit de leurs fautes, 
ayans horreur des crimes commis par le pass^, et 
employent I'assistance da I'Eglise pour les soulager en 
leurs ndcessit^s, et d^toumer le Carreau qui leur pend 
sur la teste, estans menaces d'vne famine insuportable si 
vous na pranks leur droit, et cause en protection, et faire 
ddlogar ces animaux, qui les managent d'vna ruine totala, 
k quoy nous n'empeschons. 

Concluans k cdt affect, qu'il plaise de randre vostre 
Sentence d'execution centre cas animaux, afin que d'ores 
en auant ils n'apportent du dommage aux fruits de 
la terre anjoignans aux Habitans, las Penitences, et 
Oraisons, k ce conuanables at accoustum^es. 

Za Sentence du luge d'Eglise 

In nomine Domini amen, visa supplicatione pro parte 
habitantium loci, nobis officiali in iudicio facta, aduersus 
Bronchos, seu Erucas, vel alia non dissimilia animalia 
fructus vinearum aiusdem loci k cartis annis, at adhuc 
hoc praesenti anno, vt fide dignorum Tastimonio, et quasi 
publico Rumore asseritur, cum maximo incolarum loci, 
at vicinorum locorum incommodo depopulantia, vt prae- 
dicta animalia per nos monaantur, at ramadiis Ecclesi- 
asticis madiantibus compellantur, k territorio dicti loci 
abire, visisque diligenter, inspectis causis praedictaa 
supplicationis, nacnon pro parte, dictarum Erucarum, seu 
animalium, per cartos Conciliari s eosdem, per nos 

Appendix 305 

deputatos, propositis et allegatis, audito etiam super 
praemissis promotore, ac visa certa informatione, et 
ordinatione nostra, per certum dictae Curiae, Notarium, 
de danino in vineis, iam dicti loci, per animalia illato. 
Quoniam, nisi eiusmodi damno, nisi diuina ope succurri 
posse existimatur attenta praedictorum habitantium, 
hutnili, ac frequenti, et importuna requisitione praesertim 
magnae pristinae vitae errata emendandi per eosdem 
habitantes, edicto spectaculo, solemniter supplicationum 
nuper ex nostra ordinatione, factarum prompta ex- 
hibitione, et sicut Misericordia Dei, peccatores ad se cum 
humilitate reuertentes non respuit, ita ipsius Ecclesia 
eisdem recurrentibus, auxilium sen etiam solatium quale- 
cunque denegare non debet. 

Non praedictus, in re quamquam noua, tarn fortiter 
tamen efflagitata Maiorum vestigiis inhaerendo, pro 
tribunali, sedentes, ac Deum prae oculis habentes, in eius 
Misericordia, ac pietate confidentes, de peritorum consilio, 
nostram sententiam modo quae sequitur, in his scriptis 

In nomine, et virtute Dei, Omnipotentis, Patris, et 
Filij, et Spiritus sancti, Beatissimae Domini nostri Jesu 
Christi Genetricis Mariae, Authoritateque Beatorum 
Apostolorum, Petri et Pauli, necnon ea qua fungimur in 
hac parte, praedictos Bronchos, et Erucas, et animalia 
praedicta quocunque nomine censeantur, monemus in 
his scriptis, sub pcenis Maledictionis, ac Anathemati- 
sationis, vt infrk sex dies, a Monitione in vim sententiae 
huius, a vineis, et territoriis huius loci discedant, nullum 
vlterius ibidem, nee alibi documentum, praestitura, quod 
si infra praedictos dies, iam dicta animalia, huic nostrae 
admonitioni non paruerint, cum effectu. Ipsis sex diebus 
elapsis, virtute et auctoritate praefatis, ilia in his scriptis 

306 Appendix 

Anathematizamus, et maledicimus, Ordinantes tamen, et 
districte praecipientes, praedictis habitantibus, cuius- 
cumque gradds, ordinis, aut conditionis existant, vt 
faciliiis ab Omnipotente Deo, omnium bonorum largitore, 
et malorum depulsore, tanti incommodi liberationem, 
valeant promereri, quatentis bonis operibus, ac deuotis 
supplicationibus, iugiter attendentes, de caetero suas 
decimas, sine fraude secundum loci approbatam con- 
suetudinem persoluant, blasphemiis, et aliis peccatis, 
praesertim publicis sedul6 abstineant. 

Appendix 307 


Allegation, replication, and judgment in the process 
against field-mice at Stelvio in 1519. 


Schwarz Mining hat seinKlaggesetzt wider die Lutmause 
in der Gestalt, dass diese schadliche Tiere ihnen grossen 
merklichen Schaden tun, so wurde auch erfolgen, wenn 
diese schadliche Tiere nit weggeschaft werden, dass sie 
ire Jarszinse der Grundherrschaft nit nur geben konnten 
und verursacht wurden hinweg zu ziehen, weil sie solcher 
Gestalten sich nit wiissten zu ernehren. 


Darauf Grienebner eingedingt, und diese Antwort geben 
und sein Procurey ins Recht gelegt : er hab diese wider 
die Tierlein verstanden ; es sey aber manniglich bewusst, 
dass sie allda in gewisser Gewohr und Nutzen sitzen, 

darum aufzulegen sei : Derentwegen er in HoflFnung 

stehe, man werde ihnen auf heutigen Tage die Nutz und 
Gewohr mit keinem Urtel nehmen oder aberkennen. Im 
Fall aber ein Urtel erging, dass sie darum weichen miissten, 
so sey er doch in Hoffnung, dass ihnen ein anders Ort 
und Statt geben soil werden, uf dass sie sich erhalten 
mogen : es soil ihnen auch bei solchem Abzug ein frei 
sicher Geleit vor iren Feinden erteilt, es seyn Hund 

3o8 Appendix 

Katzen oder andre ihre Feind : er sey auch in Hoifnung, 
wenn aine schwanger ware, dass derselben Ziel und Tag 
geben werde, dass ir Frucht furbringen und alsdann auch 
damit abziehen moge. 


Auf Klag und Antwort, Red und Widerred, und uf 
eingelegte Kundschaften und AUes was fiir Recht kommen, 
ist mit Urtel und Recht erkennt, dass die schadlichen 
Tierlein, so man nennt die Lutmause, denen von Stilfs 
in Acker und Wiesmader nach Laut der Klag in vierzehn 
Tagen raumen sollen, da hinweg Ziehen und zu ewigen 
Zeiten dahin nimmer mehr kommen sollen ; wo aber ains 
oder mehr der Tierlein schwanger war, oder jugendhalber 
nit hinkommen mochte, dieselben sollen der Zeit von 
jedermann ain frey sicheres Geleit haben 14 Tage lang; 
aber die so ziehen mogen, sollen in 14 Tagen wandern. 

Vide Hormayr's Taschenbuch fiir die vaterldndische 
Geschichte. Berlin, 1845, pp. 239-40. 

Appendix 309 


Admonition, denunciation, and citation of the inger 
by the priest Bemhard Schmid in the name and by the 
authority of the Bishop of Lausanne in 1478. 

Du vnverniinfftige/ vnvollkommne Creatur/ mit nam- 
men Inger/ vnd nenne dich darumb vnvoUkommen/ dann 
deines geschlechts ist nit geseyn in der Arch Noe/ in der 
Zeit der vergifftung vnd plag des Wassergusses. Nun 
hast du mit deinem anhang grossen schaden gethan im 
Erdtrich vnd auff dem Erdtrich ein mercklichen abbruch 
zeitlicher nahrung der Menschen vnd vnvemiifftigen 
thiere. Vnd von des nun/ somlicher und dergleichen/ 
durch euch vnd euweren anhang nit mehr beshach/ so 
hat mir main gnadiger Herr vnd Bischoff zu Losann 
gebotten in seinem nammen/euch zeermannen/ zeweichen 
vnd abzestahn. Vnd also von seiner Gnaden gebotts 
wegen vnd auch in seinem nammen als obstaht/ vnd bey 
krafft der heiligen hochgelobten Dreyfaltigkeit/ vnd durch 
krafft vnd verdienen des Menschen-geschlechts Erlosers/ 
vnsers behalters Jesu Christi/ vnd bey krafft vnd gehor- 
samkeit der heiligen Kirchen gebieten vnd ermannen ich 
euch in 6. nachsten tagen zeweichen/ all vnd jegliche 
besonders/ auss alien Matten/ Ackeren/ Garten/ Feldern/ 
Weiden/ Baumen/ Kriiteren/ vnd von alien orteren/ an 
denen wachsend vnd entspringend nahrungen der Men- 
schen vnd der Thieren/vndan dieort vnd statteuch fiigend/ 
dass ihr mit ewerem anhang nimmer kein schaden vollbrin- 
gen mogen an den friichten vnd nahrungen der Menschen 

310 Appendix 

vnd Thieren/ heimlich noch offentlich. Were aber sach/ 
dass ihr dieser ermannungen vnd gebott nit nachgiengend/ 
Oder nachfolgeten/ vnd meinten vrsach haben/ das nit 
zeerfiillen/ so ermannen ich euch alsvor/ vnd laden vnd 
citieren euch bey krafft vnd gehorsamkeit der heiligen 
Kirchen am 6. tag nach diser execution/ so es eins 
schlecht/ nach mitten tag/ gen Wifflispurg/ euch zu 
verantworten/ oder durch eweren Fiirsprechen antwort zu 
geben/ vor meinem gnadigen Herren von Losann/ oder 
seinem Vicario vnd statthaltern/ vnd wird drauff mein 
gnadiger Herr von Losann oder sein statthalter fiirer/ 
nach ordnungen des rechten/ wider euch/ mit verfliichen 
vnd beschweerungen/ handeki/ alss sich dann in solchem 
gebiirt/ nach form vnd gestalt des rechten. Lieben 
Kind/ ich begaren von ewerem jegUchen zu batten mit 
andacht aufif ewerem knyen 3 Paternoster vnd Ave Maria, 
der hochen heiligen Dreyfaltigkeit zu lob vnd ehr anze- 
riiffen/ vnd zebitten ihr gnad vnd hilff zesenden/ damit die 
Inger vertriben werdind. 

Job. Heinrich Hottinger : Historia eccksiastica novi 
testamenti iy. pp. 317 — 321, on the authority of Schilling's 
Chronica, the manuscript of which is in the Zurich 

Appendix 3 1 1 

Decree of Augustus, Duke of Saxony and Elector, 
commending the action of Parson Greysser in putting 
the sparrows under ban, issued at Dresden in 1559. 

Von Gottes Gnaden Augustus, Herzog zu Sachsen und 
Kurfiirst. — Lieber Getsener, welchergestalt und aus was 
Ursachen und christlichem Eifer, der wiirdige, Unser 
lieber andachtiger Hr. Daniel Greysser, Pfarrherr allhier 
in seiner nachst getanen Predigt, iiber die Sperlinge etwas 
heftig bewegt gewesen und dieselbe wegen ihres unauf- 
horlichen verdriesslichen grossen Geschreis und arger- 
lichen Unkeuschheit, so sie unter der Predigt, zu Verhin- 
terung Gottes Worts und christlicher Andact, zu tun und 
behegen pflegen, in den Bann getan, und manniglich 
preis gegeben, dessen wirst du dich als der damals 
ohne Zweifel aus Anregung des heiligen Geistes im 
Tempel zur Predigt gewesen, guter massen zu erinnern 

Wiewohl Wir uns nun vorsehen, du werdest, auf 
gedachten Herrn Daniels Vermahnen und Bitten, so 
er an alle Zuhorer insgemein getan, ohne das allbereit 
auf Wege gedacht haben ; sintemal Wir diesen Bericht 
erlangt, dass du dem kleinen Gevogel vor andem 
durch mancherlei visirliche und listige Wege und 
GrifTe nachzustellen, auch deine Nahrung unter andern 
damit zu suchen und dasselbe zu fahen pflegest, — dass 
ihnen ihrem Verdienst nach gelohnt werden moge nach 
weiland des Herrn Martini seligen Urtheil — ist demnach 

3 1 2 Appendix 

unser gnadiges Begehren — zu eroffnen, wie und welcher- 
gestalt auch durch was Behandigkeit und Wege, du fiir 
gut ansehest, dass die Sperlinge eher dann, wann sie 
jungen, und sich durch ihre tagliche und unaufhorliche 
Unkeuschheit unzahlich vermehren, ohne sonderliche 
Kosten aus der Kirche zum heiligen Kreuz gebracht, und 
solche argerliche Voglerei und hinterlicher Getzschirpe 
und Geschrei im Hause Gottes, verkiimmert werden 
moge. . . . Das gereicht zur Beforderung guter Kirchen- 
zucht und geschieht daran unsere gnadige Meinung. 
Datum Dresden, den. i8. Februar 1559. — Unserm 
Secretario und lieben getreuen Thomas Nebeln. 
Vide Hormayr's Taschenbuch,etc., 1845, pp. 227-8. 



Chronological List of Excommunications and Prose- 
cutions of Animals from the Ninth to the Nineteenth 

Sources of Information 




Annales Ecclesias- 
tici Francorum 

Muratori : Rer. Ital. 
Scriptores, iii 

Gaspard Bailly : 
Trait^ des Monitoires 



Sainte-Foix : 
vres, iv, p. 97 
moires de la Socidte 
Royale des Antiqua- 
ires de France, viii, 
p. 427 

Oeu- 1 1 20 








Foigny near 


Th^ophile Rayn- 
aud : De Monitoriis 
in Opusc. missc. ejus, 
xiv, p. 482. Mdmoires, 
cit., viii, p. 415. Note, 
Vita S. Bernhardi, i, 1121 Horseflies 
No. 58. Acta., SS. 
Aug. iv, p. 272 

' A few early instances of excommunication and malediction, our 
knowledge of which is derived chiefly from hagiologies and other 
legendary sources, are not included in the present list, such, for 
example, as the cursing and burning of storks at Avignon by St. 
Agricola in 666, and the expulsion of venomous reptiles from the 
island Reichenau in 728 by Saint Perminius. 

Valley of 






Sources of Information 




Malleolus : De Ex- 





L'Abbd Leboeuf: 
Hist, de Paris, ix, p. 
400. Mdmoires, cit., 




Roses near 


viii, p. 427 

Sainte-Foix : Oeu- 
vres Thdmis, viii 




9i it t1 




Carpentier to Du 
Cange, vide Homicida 


Not specified 

)) ») J) 



Both cited by Von 
Amira, p. 552 

Zeitschrift fiir 
deutsche Kultur- 
geschichte, ii, p. 544 ; 
also Germania, iv, p. 
383. Von Amira, p. 



Delisle : Etudes sur 
la condition de la 
classe agricole, p. 107. 
Von Amira, p. 552 






Sources of Information 




Carpentier to Du 
Cange. Vide homi- 
cida. Von Amira, p. 




Gamier: Revue des 
Soci^t^s Savantes, 
Dec. 1866, pp. 476, 
sqq. From the arch- 
ives of C6te-d'0r 


Three sows 

and a pig. 

Rest of the 

two herds 



Charange: Diet, des 
Titres Originaux, ii, 
p. 72. Also statis- 
tique de Falaise, i, p. 
63. Mdmoires, cit., 




viii, p. 427 

Auranton : Annu- 
aire de la C6te-d'0r 




Berriat - Saint- Prix 
in Mdmoires, cit., viii, 
p. 427. From MSS. 
in la Bibliotheque du 




Malleolus: De Ex- 
orcismis. Tract, ii, 
Mdmoires, cit., viii, p. 







Sources of Information Dates Animals 


MS. of Judge Hdr- 
isson, published by 
Lejeune in Mdmoires, 
cit., viii, p. 433 ; aha 
Loriol : La France 
Eure et Loire, p. io8 

Auranton : Annu- 
aire de la C6te-d'Or 

MS. Bibliotheque 
du Roi Mdmoires, cit., 
viii, p. 427 

MS. Bibliotheque 
du Roi M^moires, cit, 
viii, p. 428 

Louandre : Histoire 

5J )) >» 

Auranton : Annu- 
aire de la C6te-d'0r 

3> n J) 

?J )» JJ 

Malleolus : De Ex- 
orcismis, Mdmoires, 
cit., viii, p. 423 










Rats and 
suckers . 












Sources of Information 




Gamier: Revue des 
Socidt^s Savantes, iv, 
p. 476 sqq. Dec. 1866 


cows and 
one goat 


Gui-Pape : Decisiones 
Thdmis, i, p. 196 




M^moires, cit., viii, 
pp. 441-445. From 
Archives of Monjeu 
and Dependencies 



Etang, Bour- 

Desnoyers : Re- 
cherches, etc. 




A. Duboys : Justice 
et Bourreau a Amiens 


Two pigs 


Sauval: Histoire de 
Paris, iii, p. 387. Md- 
moires, cit., viii, p. 428 




A Duboys : His- 
toire de Paris 




Promenades pittor- 
esques dans I'Ev^ch^ 
de Bile. Journal du 
Department du Nord, 
Nov. I, 1813. Md- 




moires, cit., viii, p. 
428. Johann Gross : 
Kleine Baseler Chro- 



Sources of Information 




Schilling: Chronica 
(Zurich MS.), Hett- 
inger: Hist. Eccles. 
Pars iv, pp. 317-321 


Inger (sort 
of weevil) 


Ruchat : Hist. Ec- 
cles. du Pays de Vaud 

1479 1 



Hist, de Nismes. 
M^moires, cit., viii, p. 


Rats and 


Louandre : Hist. 




Chasseneus : Con- 
silia von Amira,p. 561 




Victor Hugo: N6tre 
Dame de Paris 




Chasseneus : Con- 
silia. M^moires, cit., 
viii, p. 416 




J) >i » 




» J) ,» 




Louandre : Hist. 




' This case is probably identical with and an adioumment of 
that of 1478. 




Sources of Information 




Annuaire de I'Aisne 
i8i2,p. 88. Mdmoi- 
res, cit., viii, p. 428, 



near Laon 

Saint-Edme : Diet, 
de la Penality, sub 
verb. Animaux 




Voyage Litt^raire 
de deux B^n^dictins 
(Durand at Martenne), 
17 1 7, ii, p. 166-7 




Archives de I'Ab- 
baye de Josaphat. 
M^moires, cit., viii, p. 



Seves near 


M^moires, cit., viii, 
P- 434 




Malleolus: De Ex- 




j> jj jj 




J) J) J) 




Louandre: L'fipo- 
pde des Animaux 




Chasseneus : Con- 






Sources of Information 




Chasseneus : Con- 


(Rats, etc.) 


Mdmoires et Docu- 
ments, publ. par la 
Soc. de la Suisse 
Romande, vii, No. 
97. PP- 675-677 




Annuaire de la 




Annuaire de la 
C6te-d'0r. Mdmoires, 
cit., viii, p. 447 




^ Mathieu : Hist, des 
Eveques de Langres, 
p, 188 


Rats and 


Grosl^e: Eph^md- 
rides, 181 1, ii, p. 153, 
168. Cf. The'ophile 
Raynaud: Opusc, 
1665, p. 482. M^- 
moires, cit., viii, p. 
413, 418, 424 


ing to 



Troyes in 

Habasque : Not. 
hist, sur le Litoral des 
C6tes-du-Nord, p. 89 




ter, xii, pp. 946-48 






Sources of Information 




Saint-Edme: Diet, 
de la Penality Cf. 




Vernet in Thdmis 
ou Bibliotheque des 
Jurisconsulte, viii 



Parliament of 

Papon and Boesius: 
Decisiones. Cf. The- 
mis, viii 



Parliament of 

jj jj j> 



J» 5J 

M^nebrda : Juge- 
ments rendus centre 
les Animaux, p. 505. 
From Grenier : Docu- 
ments relatifs a I'hist. 
du pays de Vaud. 



Lutry (on 
Lake Leman) 

Lerouge : Registre 
secret manuscrit 




Annuaire de la 




Lerouge : Registre 
secret manuscrit 




Bailly : Traitd des 
Monitoires, ii 




' Identical with the sentences covering the period of 1500-1530. 



Sources of Information 




Malleolus : De Ex- 





rats, blood- 

Berriat-Saint-Prix in 
Thdmis, i, p. 196 


Snails and 


Mdnebr^a : Juge- 
ments rendus contre 
les Animaux, pp. 544, 
545. 556- De Actis 
Scindicorum com. St. 
Jul., etc. 




St. Jean de 

Dulaure : Hist, de 
Paris, iii, p. 28, Regis- 
tres manuscrits de la 
Tournelle. Cf. Md- 



Parliament of 

moires, cit, viii, p. 429 

Lerouge : Registre 
secret manuscrit 



» ij 

>) )i )) 



He de Rhe 

)j )) j» 


Sheep (ewe) 


Aldrovande : De 
Insectis, 1602, lib. 
vii, 724. M^moires, 
cit. viii, p. 429 








Sources of Information Dates 



Desnoyer, cited in 
Revue des questions 
historiques, v, p. 278. 
Von Armira, p. 567 




Lerouge : Registre 
secret manuscrit 


She- Ass 


Lecoq : Hist, de la 
Ville de Saint-Quin- 
tin, p. 143. Sorel : 
Proces contre des 




animaux, etc., p. 9 

Lerouge : Registre 
secret manuscrit 


She- Ass 

Loigny near 

jj >) >) 



in Picardy 

Lessona : I Nemici 
del Vino. Regist. Epir. 
Par. for May 8 




Ranchin on Gui. 
Pape Quaest., 74. 
Themis, i, p. 196. 
M^moires, cit., viii, 




p. 429 

Papon : Decisiones. 
Themis, viii 



Parliament of 

Louandre: L'Epo- 
p^e des Animaux 



Parliament of 


Sources of Information 



MSS. of Biblio- 
th^que Nationale of 

Lionnois : Hist, de 
Nancy, 1811, ii, p. 

Lersner : Chronica, 
1706, p. 552 

Brillon : Decisiones 
Themis, viii 

Haus-Chronik von 
Schweinfurt, in Zeit- 
schrift fiir deutsche 
Kulturgeschichte, i, 

Cannaert : Bydra- 
gen tot de Kennis 
van het oude straf- 
recht in Vlandern, 
1835, p. vii 

Saint-Omer, p. 327 

Chorier: Hist, du 
Dauphind. Cf. Thd- 
mis, i, p. 196 

















Montier, near 



Parliament of 







Sources of Information 




M^nebr& : Juge- 



St. Jean-de- 

ments rendus centre 


les animaux, etc., pp. 

546, 549 

Fornery and Lain- 




Thdophile Ray- 
naud: De Monitoriis, 

1 6th 

Weevils and 


p. 482. Mdmoires, cit., 
viii, p. 429 



Chasseneus : Con- 




silia. Mdmoires, cit., 

viii, p. 415 

37 if )j 




J) )) jj 




Louandre : L'Epo- 
p^e des Animaux 




Duboys : Hist, du 
Droit Crim. de la 

1 6th 





Azpilcueta Martin- 
us Doctor Navarrus : 




Consilia seu Responsa, 
1602, ii, p. 812. M^- 

moires, cit., viii, p. 

419. Th^oph. Ray- 
naud, cit., p. 482 



Sources of Information 




Francesco Vivio : 
Decisiones, No. 68. 
Cited by D'Addosio : 
Bestie Delinq., p. 125 





Divers ani- 

Aquila in Italy 

Archives of Ob- 




Leonardo Vairo : 
De Fascino. Cf. D'Ad- 
dosio, cit., p. 115. 




Sardagna: L'uomo 
e le Bestie. Cited by 




Mornacius to Du 
Cange, s.v. Homicida 



Lerouge: Registre 
secret manuscrit 




)» it )) 




Lessona: I Nemici 
del Vino, 1890, p. 141 




Papon: Decisiones. 
Thdmis, viii. Lerouge: 
Reg. secret manuscrit 




Lerouge: Registre 
secret manuscrit 






Sources of Information 




Papon: Recueil 



Parliament of 

Charma : Le9ons de 



Parliament or 

Guerra: Diurnali 




Lerouge: Registre 
secret manuscrit 








)) )) )> 




)J J) J) 



Coiflfy near 

Lejeune: M^moires, 
cit., viii, p. 418 




Lerouge: Registre 
secret manuscrit 



Boursant near 

)) jj J) 




)» )) )j 




Voltaire: Sieclede 
Louis XIV, ch. i. 
Louandre : Rev. des 
deux Mondes, 1854, 



Parliament of 

i. P- 334 



Sources of Information 




Lerouge : Registre 
secret manuscrit 

jj )» j» 
j» J) )) 

)) )> )) 

)) >t )) 

Desnoyers : Re- 
cherches, etc., p. 13 

Anzeige fiir Kunde 
der deutschen Vorzeit, 
1880, col. 102 

Lerouge : Registre 
secret manuscrit 

5> » )) 

11 ;j II 

» Ji I) 

Dopier: Theat. 
pen., ii, p. 574 













She- Ass 

Rats and 



She- Ass 


Mares and 



St. Fergeux 
near Rethel 



Le Mans 


Machern near 

La Rochelle 


B essay near 





Sources of Information 




Marchisio Michele : 
Gatte ed. insetti noc- 
ivi, 1834, p. 63 sqq. 




Lerouge : Registre 
secret manuscrit 




Carpentier to Du 
Cange, s. v. Homicida 




Lerouge: Registre 
secret manuscrit 



Parliament of 

ji jj )) 



Fresnay near 

CroUolanza : Storia 
del Contado di Chia- 




venna, p. 455 sqq. 

Perrero : Gazzetta 
Litteraria di Torino, 
Feb. 24, 1883 




Cotton Mather: 
Magnalia Christi 
Americana, Book vi. 
London, 1702 



two Heifers, 

three Sheep, 

and two 


New Haven, 

Lerouge : Registre 
secret manuscrit 




3) n )J 



St. P. Lemon- 



Sources of Information 




Lerouge : Registre 
secret manuscrit 

Annales scientifi- 
ques de I'Auvergne, 
Vol. vii, p. 391 

Dopier : Theatrum 
pen., ii, p. 5 

Lerouge : Registre 
secret manuscrit 

Perrero : Gaz. Lit- 
ter, di Torius, Feb. 
24, 1883 

Brill on : Decisi- 
ones, i, p. 914. Md- 
moires, cit., viii, p. 
431. Boniface: Trait^ 
des matieres crimin- 
elles, 1785, p. 31 

Chorier : Hist, du 
Dauphind Themis, 

Lerouge : Registre 
secret manuscrit 







She- Ass 


Mare and 





Vaudes near 







Constance and 

Fourches near 



Sources of Information 




Heinrich Roch : 
Schlesische Chronik, 
p. 342. Dopier: 
Theat. pen., ii, p. 573 



in Silesia 

)J )» >J 




)> )J )J 




Dulaure : Descrip- 
tion des principaux 
lieux de la France, 
1789, V, p. 493 -f??- 
Mdmoires, cit., viii. 



Chateau in 

p. 412 

Lerouge : Registre 
secret manuscrit 




La Hontan : Voy- 
ages, Let. xi, p. 79. 
M^moires, cit., viii. 

End of 




Meiners: Vergleich- 
ung des altern u, 
neuern Russlands, p. 
291. Cf. Amira, p. 



banished to 



Registres de la 
Paroise de Grignon 






Sources of Infoimation 




Sorel: Proces cen- 
tre des animaux, etc., 
P- 23 

Rinds Herreds 
Kronike and other 
sources given by 
Amira, p. 565 

Agnel : Curiositds 
judiciaires et histori- 
ques du moyen-age, 
p. 46. Cf. Manoel 
Bemardes : Nova 
Floresta ou Sylva de 
varies apophthegmas, 
etc. 5 torn. Lisboa, 

MSS. of Biblio- 
theque Nationale of 
Paris, No. 10,970. 
D'Addosio : Best. 
Del., p. 107 

M^nebr& : Juge- 
ments contre les ani- 
maux, p. 508 

La Tradition, 1888, 
p. 363 sqq. Amira, p. 













Als in Jutland 

Piedade no 

Maranhao in 







Sources of Information 




Rousseaud de La- 
combe : Traits des 
mati^res crim. D'Ad- 
dosio: Best. Del, p. 





Ant. de Saint-Ger- 
vais : Hist, des Ani- 


She- Ass 



A Report of the 
Case of Farmer Car- 
ter's Dog. Amira, p. 





Comparon : Hist, 
du Tribunal R^vo- 
lutionnaire de Paris. 
Cf. Sorel, op. cit., p. 




Filangieri: Scienza 
della Legislazione 

1 8th 



Det. Kong. Danske 
Selskabs Skrifter. Ny 
Saml. ii, I, 22. Amira, 
P- 565- 



Lyo in Den- 

Desnoyers: Re- 
cherches, etc., p. 15 






Sources of Information 




Gazette des Tribun- 
aux, Jan. 23, 1845 




)) )) >j 



Pleternica in 

Krauss, quoted by 
Amira, p. 573 



Pozega in 

J) it )) 



Vidovici in 

Desnoyer : Recher- 
ches, etc., p. 15 




Allg. deutsche 
S t rafrechts-z e i t u n g, 
1861, No. 2. Also 
Fertile : Gli animali 
in giudizio 



Leeds in 

Cretella: Gli Ani- 
mali sotto processo in 
Fanfulla 1891, No. 
65. Cf. Amira, p. 569 




New York Herald 
and Echo de Paris, 
May 4, 1906^ 



Ddemont in 

^ In this latest record of such prosecutions a man named Marger 
was killed and robbed by Scherrer and his son, with the fierce and 
effective co-operation of their dog. The three murderers were tried 
and the two men sentenced to lifelong imprisonment, but the dog, 
as the chief culprit, without whose complicity the crime could not 
have been committed, was condemned to death. 

Appendix 335 

Receipt dated Jan. 9, 1386, in which the hangman 
of Falaise acknowledges to have been paid by the 
Viscount of Falaise ten sous and ten deniers tournois 
for the execution of an infanticidal sow, and also ten 
sous tournois for a new glove. 

Quittance originale du 9, Janvier 1386, pass^e devant 
Guiot de Montfort, tabellion a Falaise, et donnde par 
le bourreau de cette ville de la somme de dix sols et dix 
deniers tournois pour sa peine et salaire d'avoir train^ 
puis pendu k la justice de Falaise une truie de I'age 
de 3 ans ou environ, qui avoit mangd le visage de 
I'enfant de Jonnet le Maux, qui dtait au bers et avoit 
trois mois et environ, teUement que ledit enfant en 
mourut, et de dix sols tournois pour un gant neuf 
quand le bourreau fit la dite execution ; cette quittance 
est donnd a Regnaud Rigault, vicomte de Falaise; le 
bourreau y declare qu'il se tient pour bien content des 
dites sommes, et qu'il en tient quitte le roy et ledit 

Charange : Didionnaire des Titres Originaux. Paris, 
1764. Tome IT. p. 72. Also Statistique de Falaise, 
1827. Tome I. p. 63. 

336 Appendix 


Receipt, dated Sept. 24, 1394,111 which Jehan Micton, 
hangman, acknowledges that he received the sum of fifty 
sous tournois from Thomas de Juvigney, viscount of 
Mortaing, for having hanged a pig which had killed and 
murdered a child in the parish of Roumaygne. 

A tous ceulx qui ces lettres verront ou orront, 
Jehan Lours, garde du seel des obligacions de la 
vicomtd de Mortaing, salut, Sachent tous que par devant 
Bynet de I'Espiney, clerc tabellion jur^ ou siege dudit 
lieu de Mortaing, fut present mestre Jehan Micton, 
pendart,^ en la vicontd d'Avrenches, qui recognut et 
confessa avoir eu et repceu de homme sage et pourveu 
Thomas de Juvigney, viconte dudit lieu de Mortaing, c'est 
assavoir la somme de cinquante souls tournois pour sapaine 
et salaire d'estre venue d'Avrenches jusques a Mortaing, 
pour faire acomplir et pendre h. la justice dudit lieu de 
Mortaing, un pore, lequel avait tu^ et meurdis un enfant 
en la paroisse de Roumaygne, en ladite vicont^ de 
Mortaing. Pour lequel fait ycelui pore fut condanney 
h estre trayn^ et pendu, par Jehan Pettit, lieutenant du 
bailli de Cs» . . . . rin, es assises dudit lieu de Mortaing, 
de laquelle somme dessus dicte le dit pendart se tint 
pour bien pai^ et en quita le roy nostre sire, ledit 

^ In modem French pend&rd means hang-dog. M. Lejeune 
states that he can recall no other instance of its use as synonymous 
with bourreau or hangman. Perhaps a facetious clerk may have 
deemed it applicable to a person whose office was in the present 
case that of a hang-pig. 

Appendix 337 

viconte et tous aultres. En tesmoing de ce, nous avons 
selld ces lettres dudit seel, sauf tout autre droit. C'en 
fut fait I'an de grace mil trois cens quatre-vings et 
quatorze, le XXIIII' jour de septembre. Signd 
J. Lours. (Countersigned) Binet. 

[Extract from the manuscripts of the Bibliothlque 
du Rot. Vide M'emoires, ibid. pp. 439-40.] 


338 Appendix 


Attestation of Symon de Baudemont, lieutenant of the 
bailiff of Mantes and Meullant, made by order of the 
said bailiff and the King's proctor, on March 15, 1403, 
and certifying to the expenses incurred in executing a 
sow that had devoured a small child. 

A tous ceuls qui ces lettres verront : Symon de Baude- 
mont, lieutenant k Meullant, de noble homme Mons. 
Jehan, seigneur de Maintenon, chevalier chambellan du 
Roy, notre sire, et son bailli de Mante et dudit lieu de 
Meullant : Salut. Savoir faisons, que pour faire et 
accomplir la justice d'une truye qui avait devord un petit 
enffant, a convenu faire necessairement les frais, commis- 
sions et ddpens ci-apres d^clards, c'est k savoir : Pour 
d^pense faite pour elle dedans le geole, six sols parisis. 

Item, au maltre des hautes-oeuvres, qui vint de Paris k 
Meullant faire ladite execution par le commandement et 
ordonnance de nostra dit maistre le bailli et du procureur 
du roi, cinquante-quatre sols parisis. 

Item, pour la voiture qui la mena a la justice, six sols 

Item, pour cordes k la lier et haler, deux sols huit 
deniers parisis. 

Item, pour gans, deux deniers parisis. 

Lesquelles parties font en somme toute soixante neuf 
sols huit deniers parisis ; et tout ce que dessus est dit 
nous certifions etre vray par ces pr^sentes scelldes de notre 

Appendix 339 

seel, et k greigneur confirmation et approbation de ce y 
avons fait mettre le seel de la chatellenie dudit lieu de 
Meullant, le XV^ de mars I'an 1403. Signd de Baude- 
mont, avee paraffe, et au dessous est le sceau de la chatel- 
lenie de Meullant. 

[Extract from the manuscripts of M. H&isson, judge 
of the civil court of Chartres, communicated by M. 
Lejeune to the Memoires de la Societt Royale des Anti- 
quaires de France. Tome viii, pp. 433-4.] 

34° Appendix 


Receipt, dated Oct. i6, 1408, and signed by Toustain 
Pincheon, jailer of the royal prisons in the town of 
Pont de Larche, acknowledging the payment of nineteen 
sous and six deniers toumois for food furnished to 
sundry men and to one pig kept in the said prisons on 
charge of crime. 

Pardevant Jean Gaulvant, tabellion jurd pour le roy 
nostre sire en la vicont^ du Pont de Larche, fut present 
Toustain Pincheon, geolier des prisons du roy notre sire 
en la ville du Pont de Larche, lequel cognut avoir eu et 
recue du roy nostre dit sire, par la main de honnorable 
homme et saige Jehan Monnet, viconte dudit lieu du 
Pont de Larche, la somme de 19 sous six deniers tour- 
nois qui deus lui estoient, c'est assavoir 9 sous six deniers 
tournois pour avoir trouvd (livr^) le pain du roi aux 
prisonniers debtenus, en cas de crime, es dites prisons. 
(Here the names of these prisoners are given.) Item i 
ung pore admend es dictes prisons, le 21" jour de juing 
1408 inclus, jusques au 17° jour de juillet apres en 
suivant exclut que icellui pore fu pendu par les gares h. 
un des posts de la justice du Vaudereuil, k quoy il avoit 
est^ condempnd pour ledit cas par monsieur le bailly de 
Rouen et les conseuls, es assises du Pont de Larche, par 
lui tenues le 13' jour dudict mois de juillet, pource que 
icellui pore avoit muldry et tu6 ung pettit enfant, auquel 

Appendix 341 

temps il a xxiiii jours, valent audit pris de 2 deniers 
tournois par jour, 4 sols 2 deniers, et pour avoir trouv^ 
at bailie la corde qu'il esconvint k lier icelui pore qu'il 
reschapast de ladite prison oil il avait estd mis, x deniers 
tournois. Du i6 Octobre 1408. 

[Derived from manuscripts of the BibliotJieque du Hoi, 
Vide Mdmoires, cit., pp. 428 and 440-1.] 

342 Appendix 


Letters patent, by which Philip the Bold, Duke of 
Burgundy, on Sept. 12, 1379, granted the petition of the 
friar Humbert de Poutiers, prior of the town of Saint- 
Marcel-lez-Jussey, and pardoned two herds of swine 
which had been condemned to suffer the extreme penalty 
of the law as accomplices in an infanticide committed by 
three sows. 

Phelippe, filz du Roi de France, due de Bourgoingue, 
au bailli de noz terres au contd de Bourgoingue, salut. 

Oye la supplication de frere Humbert de Poutiers, 
prieur de la prieurt^ de la ville de Saint-Marcel-lez-Jussey, 
contenant que comme le Y" jour de ce present mois de 
septembre, Perrinot, fils Jehan Muet, dit le Hochebet, 
pourchier commun de ladite ville, gardant les pors das 
habitans d'icelle ville ou finaige d'icelle, et au cry de I'un 
d'iceulx pors, trois truyes estans entre lesdits pors ayent 
couru sus audit Perrenot, I'ayent abattu et mis par terre 
entre eulx, ainsi comme par Jehan Benoit de Norry qu'il 
gardoit les pourceaulx dudit suppliant, et par le pere 
dudit Perrenot a est^ trouvd blessier k mort par lesdites 
truyes, et si comme icelle Perrenot la confess^ en la 
presence de son dit pfere e dudit Jehan Benoit, et assez 
tost aprfes il soit eu mort. Et pour ce que ledit supphant 
auquel appartient la justice de ladite ville ne fust repris 
de negligeance son maire arresta tous lesdits pores pour 
en faire raison et justice en la mani^re qu'il appartient, et 

Appendix 343 

encore les ddtient prissonniers tant ceux de ladite ville 
comme partie de ceulx dudit suppliant, pour ce que dit 
ledit Jehan Benoit ils furent trouvez ensemble avec lesdites 
truyes, quand ledit Perrenot fut ainsi blessid. Et ledit 
prieur nous ait suppli^ que il nous plaise consentir que en 
faisant justice de trois ou quatres desdits pores le demeu- 
rant soit delivr^. Nous inclinans k sa requeste, avons de 
gikce especiale ouctroyd et consenty, et par ces pr^sentes 
ouctroyons et consentons que en faisant justice et execu- 
tion desdites trois truyes et de I'ung des pourceaulx dudit 
prieur, que le demeurant desdits pourceaulx soit mis 
a delivre, nonobstant qu'ils aient est^ h la mort dudit 
pourchier. Si vous mandons que de notre presente 
grdce vous faictes et laissiez joyr et user ledit prieur et 
autres qu' il appartiendra, sans les empescher au grace. 

Donn^ a Montbar, le XII^ jour de septembre de I'an 
de grace mil CCC LXX IX. Ainsi sign^. Par monseig- 
neur le due : /. Potier. 

[Published by M. Garnier in the Revue des Soctetes 
Savantes, Dec. 1866, pp. 476 sqq., from the archives of 
C6te-d'0r and reprinted by D'Addosio in Bestie Delin- 
quenti, pp. 277-8.] 

344 Appendix 

Sentence pronounced by the Mayor of Loens de 
Chartres on the twelfth of September, 1606, condemning 
Guillaume Guyart to be hanged and burned together with 
a bitch. Extract from the records of the clerk's office of 
Loing under the date of Sept. 12, 1606. 

Entre le procureur de messieurs^ demandeur et 
accusateur au principal et requdrant le proffit et adjudica- 
tion de troys deffaulx et du quart d'abondant, d'une part, 
et Guillaume Guyard, accusd, deffendeur et ddfaillant, 
d'autre part. 

Veu le proces criminel, charges et informations, d&ret 
de prise de corps, adjournement k troys briefs jours, les 
diets trois deffaulx, le diet quart d'habondant, le recolle- 
ment des diets tdmoings et recognaissance faicte par Us 
diets tkmoings de la chienne dont est question, les conclusions 
dudict procureur, tout veu et eu sur ce conseil, nous 
disant que lesdicts troys deffaulx et quart d'habondant ont 
estd bien donnas pris et obtenus contre ledict Guyard 
accusd, attainct et convaincu 

Pour reparation et punition duquel crime condempnons 
ledict Guyard estre pendu et estrangld a une potence qui, 
pour cest effet, sera dress^e aux lices du Marchd aux 
Chevaux de ceste ville de Chartres, au lieu et endroict oil 

' Under this term are included the dean, canons, and chapter of 
the Cathedral of Chartres. 

Appendix 345 

les diet sieurs ont tout droit de justice. Et auparavant 
ladicte execution de mort, que ladicte chienne sera 
assomm^e par I'exdcuteur de la haute justice audict lieu, 
et seront les corps morts, tant dudict Guyard que , de la 
dicte chienne brfil^s et mis en cendres, si le diet Guyard 
peut estre pris et apprehend^ en sa personne, sy non pour 
le regard du diet Guyard, sera la sentence execute par 
eflfigie en un tableau qui sera mis et attach^ a ladicte 
potenee, et ddclarons tous et chascuns ses biens acquis et 
confisquds a qui il appartiendra, sur cieux pr^alablement 
pris la somme de cent einquante livres d'amende que 
nous avons adjug^es auxdicts sieurs, sur laquelle somme 
seront pris les fraicts de justice. Prononc^ et ex^cutd 
par effigie, pour le regard du diet Guyard les jour et an 
cydessus. Sign^ Guyot. 

[A true copy of the original extract extant in the office 
of M. Hdrisson, judge of the civil court of Chartres, made 
by M. Lejeune and communicated to the Socidtd Royale 
des Antiquaires de France. Vide Mdmoires of this 
Society, cit, pp. 436-7.] 

346 Appendix 


Sentence pronounced by the judge of Savigny on 
Jan. 1457, condemning to death an infanticidal sow. 
Also the sentence of confiscation pronounced nearly a 
month later on the six pigs of the said sow for complicity 
in her crime. 

Jours tenus au lieu de Savigny, prfes des fouss^s du 
Chastelet de dit Savigny, par noble homme Nicolas 
Quarroillon, ecuier, juge dudit lieu de Savigny, et ce le 
10° jour du moys de Janvier 1457, pr^sens maistre 
Philebert Quarret, Nicolas Grant-Guillaume, Pierre Bome, 
Pierre Chailloux, Germain des Muliers, Andr^ Gaudriot, 
Jehan Bricard, Guillaume Gabrin, Philebert Hogier, et 
plusieurs autres tesmoins h ce appelles et requis, I'an et 
jour dessus dit. 

Huguemin Martin, procureur de noble damoiselle 
Katherine de Barnault, dame dudit Savigny, demandeur 
a I'encontre de Jehan Bailly, alias Valot dudit Savigny, 
et promoteur des causes d'office dudit lieu de Savigny, 
demandeur h I'encontre de Jehan Bailly, alias Valot dudit 
Savigny deffendeur, k I'encontre duquel par la voix et 
organ de honorable homme et saige Mr. Benoit Milot 
d'Ostun, licencid en loys et bachelier en d^cret, conseillier 
de monseigneur le due de Bourgoingne, a 6t€ dit et 
proposd que le mardi avant Noel dernier pass4 une truye, 
et six coichons ses suignens, que sont prdsentement 
prisonniers de ladite dame, comme ce qu'ils dtd prins en 

Appendix 347 

flagrant delit, ont commis et perpetr^ mesmement ladicte 
truye murtre et homicide en la personne de Jehan 
Martin en aige de cinq ans, fils de Jehan Martin dudit 
Savigny, pour la faulte et culpe dudit Jehan Bailly, alias 
Valot, requerant ledit procureur et promoteur desdites 
causes d'office de ladite justice de madite dame, que 
ledit ddfendeur rdpondit es chouses dessus dites, desquelles 
apparaissoit a souffisance, et lequel par nous a est6 somm^ 
et requis ce il vouloit avoher ladite truhie et ses 
suignens, sur le cas avant dit, et sur ledit cas luy a est^ 
faicte sommacion par nous juge avant dit, pour la 
premiere, deuxidme et tierce fois, que s'il vouloit rien 
dire pourquoi justice ne s'en deust faire Ton estoit tout 
prest de les oir en tout ce qu'il vouldrait dire touchant 
la pugnycion et execution de justice que se doit faire de 
ladite truhie ; veu ledit cas, lequel deffendeur a dit et 
respondu qui'l ne vouloit rien dire pour le present et pour 
ce ait est^ proc^dd en la maniere qui s'ensuit; c'est 
assavoir que pour la partie dudit demandeur, avons estd 
requis instamment de dire droit en ceste cause, en la 
presence dudit defendeur present et non contredisant, 
pourquoy nous juge, avant dit, savoir faisons a tons que 
nous avons proc^dd et donnd nostre sentence deffinitive 
en la maniere que s'ensuit ; c'est assavoir que veu le cas 
lequel est tel comme a est^ propose pour la partie dudit 
demandeur, et duquel appert a souffisance tant par 
tesmoing que autrement dehuement hue. Aussi conseil 
avec saiges et practiciens, et aussi consid^rd en ce cas 
I'usance et coustume du pais de Bourgoingne, aiant 
Dieu devant nos yeulx, nous disons et pronungons 
par notre dite sentence, d&lairons la tryue de Jehan 
Martin, de Savigny, estre confisqude a la justice de Madame 
de Savigny, pour estre mise h. justice et au dernier 

348 Appendix 

supplice, et estre pendus par les pieds derriers a ung 
arbre esprond en la justice de Madame de Savigny, 
considdr^ que la justice de madite dame n'est mie 
pr^sentement elevde, et icelle truye prendre mort audit 
arbre espron^, et ansi le disons et pronongons par notre 
dicta sentence et h, droit et au regard des coichons de 
ladite truye pour ce qui n'appert aucunement que 
iceuls coichons ayent mangids dudit Jehan Martin, 
combien que aient estds troves ensanglant^s, Ton remet 
/a cause d'iceulx coichons aux tres jours, et avec ce Ton 
est content de les rendre et bailler audit Jehan Bailly, 
en baillant caucion de les rendre s'il est trov^ qu'il 
aient mangiers dudit Jehan Martin, en paiant les 
poutures, et fait Ton savoir a tous, sous peine de 
I'amende et de 100 sols tournois qu'ils le dieut et 
dtelairent dedans les autres jours, de laquelle nostre 
dicte sentence, apres la prononciation d'icelle, ledit pro- 
cureur de ladite dame de Savigny et promoteur des causes 
d'office par la voix dudit maistre Benoist Milot, advocat 
de ladite dame ; et aussi ledit procureur a requis et 
demand^ acte de nostre dicte court a lui estre faicte, 
laquelle luy avons ouctroy^ et avec ce instrument, je, 
Huguenin de Montgachot, clerc, notaire publicque de la 
court de monseigneur le due de Bourguoigne, en la 
presence des tesmoings ci-dessus nommds, je lui ai 
ouctroyd, ce fait I'an et jour dessus dit et pr^sens les 
dessus tesmoings. Ita est. Ainsi signe, Mongachot, 
avec paraphe, et de suite est ^crit : 

Item, en oultre, nous juge dessus nomm^ savoir 
faisons que incontinent apres nostre dicte sentence 
ainsi donne'e par nous les an et jour, et en la presence 
des temoings que dessus, avons somme' et requis ledit 
Jehan Bailli, se il vouloit avoher lesdits coichons, et 

Appendix 349 

se il vouloit bailler caucion pour avoir recreance 
d'iceulx; lequel a dit et r^pondu qui ne les avohait 
aucunement, et qui ni demandait rien en iceulx 
coichons ; et qui s'en rapportoit k ce que en ferions ; 
pourquoy sont demeurez k la dicte justice et seignorie 
dudit Savigny, de laquelle chouse ledit Huguenin 
Martin, procureur et promoteur des causes d'offices, 
nous en a demand^ acte de court, lequel lui nous 
avons ouctroy^ et ouctroyons par ces pr^sentes, et 
avec ce ledict procureur de ladicte dame, a moy 
notaire subescript, m'en demanda instrument, lequel 
je luy ait ouctroy^ en la presence desdits tesmoings 
cy-dessus nommds. 

Ifem, en apres, nous Nicolas Quaroillon, juge avant 
dit, savoir faisons a tous que incontinent apres les 
chouses dessus dictes, avons faict delivrer rdalement et 
de fait ladicte truye k maistre Etienne Poinceau, 
maistre de la haute justice, demeurant k Ch§,lons-sur- 
Saone, pour icelle mettre h ex^cucion selon la forme 
et teneur de nostre dicte sentence, laquelle d^livrance 
d'icelle triihie faicte par nous comme dit est, incontinent 
ledit maistre Estienne a mend sur une chairette ladicte 
truye a ung chaigne espron^ estant en la justice de ladite 
dame Savigny, et en icelluy chaigne esprond, icelluy 
maistre Estienne a pendu ladite truye par les piez 
derriers ; en mectant k execution deue nostre dicte 
sentence, selon la forme et teneur de laquelle delivrance 
et execution d'icelle truye, ledit Huguenin Martin, pro- 
cureur de ladicte dame de Savigny nous a demand^ acte 
de nostre dicte court k lui estre faicte et donnde, laquelle 
luy avons ouctroyde, et avec ce k moi, notaire subscript, 
m'a demand^ instrument ledit procureur a luy estre 
dormde, je luy ai ouctroyd en la presence des temoings 

350 Appendix 

cy-dessus nommez, ce fait les au et jour dessus ditz. 
Ainsi sign^ Mongachot, avec paraphe. 

Nearly a month later, on " the Friday after the Feast of 
the Purification of Our Lady the Virgin " (which occurred 
on Feb. 2.), "the six little porklets or sucklings " were 
brought to trial. The following is the proeh verbal. 

Jours tenus au lieu de Savigny, sur la chauss^e de 
I'Estang dudit Savigny, par noble homme Nicolas 
Quarroillon, escuier, juge dudit lieu de Savigny, pour 
noble damoiselle Katharine de Barnault, dame dudit 
Savigny, et ce le vendredy apres la feste de la Purification 
Notre Dame Vierge, pr^sens Guillaume Martin, Guiot de 
Layer, Jehan Martin, Pierre Tiroux et Jehan Bailly, 
tesmoings, etc. 

Veue les sommacions et requisitions faicte par nous 
juge de noble damoiselle Katherine de Barnault, dame 
de Savigny, a Jehan Bailly alias Valot de advohd on 
repudid les coichons de la truye nouvellement mise 
a execution par justice k raison du murtre commis et 
perpetr^ par la dicte truye en la personne de Jehan 
Martin, lequel Jehan Bailli a estd remis de advoher 
lesdites coichons et de baillier caucion d'iceulx coichons 
rendre, s'il estoit trouv^ qu'ils feussions culpables du 
ddlict avant diet commis par ladicte truye et de payer les 
poutures, comme appert par acte de nostre dicte court, 
et autres instrumens souffisans ; pourquoi le tout veu en 
conseil avec saiges, ddclairons et pronuncons par nostre 
sentence deffinitive, et k droit : iceulx coichons computer 
et appartenir comme biens vaccans k ladite dame de 
Savigny et les luy adjugeons comme raison, I'usence et 
la coustume de pais le vueilt. De laquelle nostre dicte 

Appendix 351 

sentence, ledit procureur de ladite dame en a demand^ 
acte, de nostra dicte court a luy estre donnde et ouctroyde. 
Avec ce en a demand^ instrument k moy notaire sub- 
script, lequel il luy a ouctroyd en la presence des dessus 
nommds. Signi Mongachot avec paraphe. 

[Extract from the archives of Monjeu and Dependen- 
cies, belonging to M. Lepelletier de Saint-Fargeau. 
(Savigny-sur-Etang, boete 256, liasse i, 2, & 3, etc.) 
Vide Mdmoires, cit., pp. 441-5.] 

352 Appendix 


Sentence pronounced April t8, 1499, in a criminal 
prosecution instituted before the Bailiff of the Abbey of 
Josaphat, in the Commune of Seves, near Chartres, 
against a pig condemned to be hanged for having killed 
an infant. In this case the owners of the pig were fined 
eighteen francs for negligence, because the child was 
their fosterling. 

Le lundi 18 avril 1499. 

Veu le proces criminel faict par-devant nous \ la 
requeste du procureur de messieurs le religieux, abbd et 
convent de losaphat, "k I'encontre de lehan Delalande 
et sa femme, prisonniers esprisons de cdans, pour raison 
de la mort advenue ^ la personne d'une jeune enfant, 
nommde Gilon, igde de un an et demi ou environ ; laquelle 
enfant avoit etd baillde ^ nourrice par sa mere : ledict 
meurtre advenu et commis par un pourceau de I'aage 
de trois mois ou environ, aulxdits Delalande et sa femme 
appartenant ; les confessions desdicts Delalande et sa 
femme ; les informations par nous et le greffier de ladite 
jurisdiction faictes k la requite dudict procureur ; le tout 
veu et en sur ce conseil aulx saiges, ledit Jehan Delalande 
et sa femme, avons condampnis et condampnons en F amende 
envers de justice de dix-huit franz, qu'il a convenus pour ce 
faire, tel que de raison, et a tenir prison jusqu'^ plein 
payement et satisfaction d'iceulx i tout le moins qu'ils 
avoient bailld bonne et seure caution d'iceulx. 

Et en tant que louche le did pourceau, pour les causes 

Appendix 353 

contenues et dtablies audict proces, mus les avons con- 
dampni et condampnons h itre pendu et execute par justice, 
en la jurisdiction des mes diets seigneurs, par notre 
sentence definitive, et d droit. 

Donne sous la contre seel aux causes dudict baillage, 
les an et jour que susdicts. Signe C. Briseg avec 

[The complete record of this trial contains the minutest 
details of the proceedings, ending with the execution of 
the pig, and was taken from the archives of the Abbey 
Josaphat at the time of the Revolution by M. B., 
Secretary-general of the department. Since then it has 
disappeared ; but this copy of the original, made at that 
time, is declared by M. Lejeune to be perfectly exact. 
Vide Mdmoires, cit., pp. 434-S-] 


354 Appendix 


Sentence pronounced June 14, 1494, by the grand 
mayor of the church and monastery of St. Martin de 
Laon, condemning a pig to be hanged and strangled for 
infanticide committed on the fee-farm of Clermont- 

A tons ceulx qui ces pr^sentes lettres verront ou orront, 
Jehan Lavoisier licentie ez loix, et grand mayeur de 
r^glise et monast^re de monsieur St. Martin de Laon, 
ordre de Prdmontrd, et les echevins de ce m^me lieu ; 
comme il nous eust ^t^ apportd et affirm^ par le procureur- 
fiscal ou syndic des religieux, abbd et convent de Saint- 
Martin de Laon, qu'en la cense de Clermont-lez-Mont- 
cornet, appartenant en toute justice haulte, moyerme et 
basse auxdits relligieux, ung jeune pourceaulx eust 
dstrangld et defacii ung jeune enfant estant au berceau, 
fils de Jehan Lenfant, vachier de ladite cense de Clermont, 
et de Gillon sa femme, nous advertissant et nous requdr- 
ant \ cette cause, que sur ledit cas voulussions procdder, 
comme justice attraison le d^siroit et requerroit; et que 
depuis, afin de savoir et cognoitre la virAi dudit cas, 
eussion oui et examine par serment, GiUon, femme dudit 
Lenfant, Jehan Benjamin, et Jehan Daudancourt, censiers 
de ladite cense, lesquels nous eussent dit et affirm^ par 
leur serment et conscience, que le lendemain de Pasques 
dernier pass^ ledict Lenfant estant en la garde de ses 
bestes, ladicte Gillon sa femme desjettoit de ladicte 
cense, pour aller au village de Dizy , ayant d^aissd 

Appendix 355 

en sa maison ledict petit enfant EUe le renchargea 

k une sienne fiUe, kg6e de neuf ans pendant et 

durant lequel temps ladite fille s'en alia jouer autour 
de ladite cense, et laiss^ ledit enfant couchd en son 
berceau ; et ledit temps durant, ledit pourceaulz entra 

dedans ladite maison et ddfigura et mangea le 

visage et gorge dudit enfant T6t apr^s ledit 

enfant, au rnoyen des morsures et d^visagement que lui 
fit ledit pourceaulz, de ce siecle tr^passa : savoir faisons 

Nous, en detestation et horreur dudit cas, et 

afin d'exemplaire et gard^ justice, avons dit, jug^, sen- 
tenci^, prenoncd et appoint^, que ledit pourceaulz estanf 
detenu prisonnier et enferme en ladite abbaye, sera par le 
maistre des hautes-oeuvres, pendu et estrangl^, en une 
fourche de bois, auprSs et joignant des fourchee patibu- 
laires et haultes justices desdits relligieux, estant aupres 

de leur cense d'Avin En temoing de ce nous 

avons scelH ces presentes de notre seel. 

Ce fut fait le quatorzieme jour de juing, I'an 1494, et 
scelld en cire rouge ; et sur le dos est dcrit : 

Sentence pour ung pourceaulz execute par justice, 
admend en la cense de Clermont, et dtrangld en une 
fourche les gibez d'Avin. 

[M. Boileau de Maulaville, in L'Annuaire de I'Aisne 
1812, p. 88. Vide Mdmoires, cit., pp. 428 and 446-7.] 

356 Appendix 

Sentence pronounced, March 27, 1567, by the royal 
notary and proctor of the bailiwick and bench of the 
court of judicatory of Senlis, condemning a sow with 
a black snout to be hanged for her cruelty and ferocity 
in murdering a girl of four months, and forbidding the 
inhabitants of the said seignioralty to let such beasts 
run at large on penalty of an arbitrary fine. 

A tous ceulx qui ces pr^sentes lettres verront, Jehan 
Lobry, notaire royal et procureur au bailliage et siege 
prdsidial de Senlis, baUly et garde et seigneurie de Saint- 
Nicolas d'Acy, les le dit Senlis, pour M.M. les religieux, 
prieur et coivent du diet lieu, salut ; savoir faisons : 

Veu le proems extraordinairement fait a la requete du 
Procureur de la seigneurie du diet Saint-Nicolas, pour 
raison de la mort advenue k une jeune fiUe agde de 
quatre mois ou environ, enfant de Ly^nor Darmerge et 
Magdeleine Mahieu sa femme, demeurant au diet Saint - 
Nicolas, trouvde avoir estd mangle et devorde en la tete, 
main senestre et au dessus de la mamelle dextre par une 
truye ayant le museau noire, appartenant k Louis Mahieu, 
frere de la dite femme et son proche voisin ; 

Le proces verbal de la visitation du diet enfant en la 
presence de son parrain et de sa marraine qui I'ont 
recogneu ; 

Les informations faites pour raison du dit cas, interro- 
gatoires des dits Louis Mahieu et sa femme, avec la 

Appendix 357 

visitation faicte de la dicte truye k I'instant du dit cas 
advenu et tout consider^ en conseil, il a 6t6 conclu et 
advis^ par justice que pour la CRUAUTfi et ferocitI; 
COMMISE PAR LA DiTE TRUYE, clle sera extcrmin^e par 
mort et pour ce faire sera pendue par I'executeur de la 
haulte justice en ung arbre estant dedans les fins et 
mottes de la dicte justice sur le grande chemin rendant 
de Saint-Firman au dit Senlis, en faisant defFenses k tous 
habitans et sujet des terres et seigneurie du dit Saint- 
Nicolas de ne plus laisser dchapper telle et semblables 
bestes sans bonne et seure garde, sous peine d'amende 
arbitraire et de pugnition corporelle s'ily dchoit, sauf et 
sans prejudice a faire droit sur les conclusions prinses 
par le dit Procureur k I'encontre des dits Mahieu et sa 
femme ainsi que de raison, au t^moin de quoy nous 
avon scelld les prdsentes du seel de la dicte justice. 

Ce fu faist le jeudi 27= jour de Mars 1557 et exdcutd 
ledit jour par I'executeur de la haulte justice du dit 

[Dom. Grenier, Manuscrits de la BibliotMque Nationah 
de Paris, tome xx. p. 87. Quoted by D'Addosio, who, 
however, confounds the prosecution of 1567 with that 
of 1499.] 

358 Appendix 


Sentence of death upon a bull, May 16, 1499, by the 
bailiff of the Abbey of Beauprd, for furiously killing 
Lucas Dupont, a young man of fourteen or fifteen years 
of age. 

A tous ceux qui ces presentes lettres verront, Jean 
Sondar, Lieutenant du Bailly du temporel de I'^glise 
& abbaye n6tre Dame de Beauprds de I'ordre de Cisteaux, 
pour venerables & discretes personnes & mes tres- 
honorez seigneurs, messeigneurs les religieux abb^ & 
convent de ladite abbaye, salut. Comme k la requeste 
du procureur de mesdits seigneurs, & par leur justice 
temporelle qu'ils ont en leur terre & seigneurie du 
Caurroy eftt 6t6 nagaires prins & mis en la main d'icelle 
leur justice ung thorreau de poll rouge, appartenant h. 
Jean BouUet censier & fermier de mesdits seigneurs, 
demeurant en leur maison & cense dudit Caurroy, 
lequel thorreau dtant aux champs & sur le territoiiere 
d'icelle dglise, auroit par furiositd occis & mis k mort un 
joine fils, nomm^ Lucas Dupont, de I'tge de quatorze k 
quinze ans, ou environ, serviteur dudit censier, lequel 
il avoit mis k la garde de ces bestes k come, entre les- 
quelles estoit ledit thorreau. Duquel thorreau ledit 
procureur de mesdits seigneurs requeroit la justice 
estre faite, & qu'il fut execute jusqu'k mort inclusive- 
ment par la justice de mesdits seigneurs pour occasion 
de icelui crimme de omicide & de la detestation d'iceluy. 

Appendix 359 

Sur quoy enqueste & information eussent ^t^ faites de 
la forme & maniere iceluy homicide, par laquelle ledit 
procureur nous eust requis sur ce luy estre fait droit. 
Savoir faisons que veu laditte enqueste & information & 
sur tout en conseil & advis, nous par nostre sentence & 
jugement, avons dies & jugi^ que pour raison de I'omi- 
cide, dont dessus est touchid, fait par ledit thorreau en 
la personne d'iceluy Lucas, & pour la detestation du 
crime d'iceluy homicide, ledit thorreau nomm^ confisqu^ 
k mesdits seigneurs sera execute jusques k mort inclusive- 
ment par leurdite justice, & pendu a une fourche ou 
potence es mettes de leurdite terre & seigneurie dudit 
Caurroy, aupres du lieu ou solicit estre assise la justice. 
Et ad ce le avons condamnd & condamnons. En 
tesmoing de ce avons mis nostre seel a ces lettres qui 
furent faites & pronunchi^s audit lieu du Caurroy en la 
presence de Guillaume Gave du Mottin, Jehan Custien 
I'aisn^, Jehan Henry, Jehan BouUet, hommes & sub- 
jets de mesdits seigneurs, Jehan Charles, & Clement le 
Carpentier, & plusieurs autres les seizieme jour de May 
I'an mil quatre cens quatre-vingt-dix-neuf. Ainsi sign^, 
Ileugles, ad ce commis. 

[The original records of this trial for homicide are in 
the archives of the Abbey of Beauprd Vide Voyage 
Litteraire de deux Religieux Benedidins de la Congrega- 
tion de St. Maur. Seconde Partie, pp. 166-7. Paris, 
17 1 7. The Benedictins were Dom. Edmond Martene 
and Dom. Ursin Durand.] 

360 Appendix 


Scene from Racine's comedy Les Plaideurs, in which a 
dog is tried and condemned to the galleys for stealing a 

After the accused had been found guilty, his counsel 
brings in the puppies and thus appeals to the compassion 
of the court : 

" Venez, famille desol^e ; 

Venez, pauvres enfants qu'on veut rendre orphelins ; 

Venez faire parler vos esprits enfantins. 

Oui, messieurs, vous voyez ici notre misere ; 

Nous sommes orphelins, rendez-nous notre p^re, 

Notre pfere par qui nous ffimes engendr^s, 

Notre p^re qui nous .... 

Tirez, tirez, tirez. 


Notre pfere, messieurs .... 


Tirez done, Quels vacarmes ! 
lis ont piss^ partout. 


Monsieur, voyez nos larraes. 
Ouf ! je me sens deja pris de compassion. 
Ce que c'est qu' I. propos toucher la passion ! 
Je suis bien empgchd. La vdritd me presse ; 
Le crime est avdr^, lui-meme il le confesse. 
Mais, s'il est condamnd, I'embarras est dgal ; 
Voil^ bien des enfants r^duits \ I'hopital." 

Les Plaideurs, Act iii, sc. 3. 

Appendix 361 

Record of the decision of the Law Faculty of the 
University of Leipsic condemning a cow to death for 
having killed a woman at Machern near Leipsic, July 20, 

Ao 162 1 den 20 July ist Hanss Fritzchen weib 
Catharina alhier zu Machern wohnende von Ihrer eigen 
Mietkuhe,^ da sie gleich hochleibss schwanger gang, auff 
Ihren Eigenen hofe zu Tode gestossen worden. Vber 
welch vnerhorten Fall der Juncker Friederich von 
Lindenau, als Erbsass diesess ortes, in der Jurisstischen 
Facultet zu Leipzig sich dariiber dess Rechtes belernet : 
Welche am Ende dess Vrtelss diese wort also aussgespro- 
chen : So wird die Kuhe, als abschewlich thier, an Einen 
abgelegenen oden ort billig gefiihret, daselbst Erschlagen 
oder.Erschossen, vnnd vnabgedecht begraben. Christoph 
Hain domalss zu Selstad wohnend hat sie hinder der 
Schafferey Erschlagen vnd begraben, welchess geschehen 
den 5. Augusti auff den Abend, nach Eintreibung dess 
Hirtenss zwischen 8 vnd 9 vhren. 

[Extract from the parish-register of Machern, near 
Leipsic, printed in Anzeiger fur Kunde der deutschen 
Vorzeit. No. 4, April 1880, col. 102.J 

' Mietkuhe, a cow pastured or wintered for pay. 


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Aquinas, Thomas. See Thomas. 

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states their views fully and clearly. 
QuiNONES, Juan de : Tratado de Langostas. Madrid, 

1620. A treatise on exorcisms of locusts, weevils, rats, 

mice, and birds. 
Raynaud, Theophile: De Monitoriis, etc. (Part 11. 

c. 12, No. 6) in his Opusc. Misc. 1665. Tom. xiv., 

p. 482. 

The author criticises Chassende. 
Riccius, Aloysius : Resolutiones (408). 


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Abbott, Rev. Lyman, re- 
gards bad impulses as 
suggestions of evil spirits, 

Achan, his severe punish- 
ment by Joshua, 180 

Addosio, Carlo d', his Bestie 
Delinquenti cited, i, 4 ; 
his list of animal prose- 
cutions, 135 ; on pigs as 
a public nuisance in Italy, 


jEschines, cited, 172 

^schylus, his Choephoroi 
cited, 174 

Ahuramazda, 57, 61, 82, 176 

Alard, Jean, burned alive 
as a Sodomite for coition 
with a Jewess, 153 

Altiat, his poem quoted, 93 

Amira, iProf. Karl von, his 
Thierstrafen und Thier- 
processe cited, 1-3, 137 

Anathemas, only effective 
when formally complete, 
as with all incantations 
and excommunications, 4, 
36 ; citations from the 
Bible in proof of their 
power, 25 ; render an 
orchard barren and expel 
eels and blood-suckers 
from Lake Leman, 27 ; 
turn white bread black to 
punish heresy, 28 ; fatal 

to swallows and flies, 
which disturb religious 
services, 28, 29 ; sold by 
the Pope, 30 ; hurled 
against noxious vermin, 
37 ; made more effective 
by the prompt payment 
of tithes, 37 ; differ from 
excommunications, 51-54; 
superseded in Protestant- 
ism by prayer and fasting 
and in science by Paris 
green, 53 
Animals, prosecuted by civil 
and ecclesiastical courts, 
2 ; ofifice of the Church in 
repressing articulate and 
rodent, 3, 5 ; as satellites 
of Satan or agents of God, 
5, 6, 52-57, 67 ; personi- 
fication of, ID, II; their 
competency as witnesses, 
1 1 ; origin of their judicial 
prosecution, 12 ; as born 
criminals, 14 ; tendency 
of modern penology to 
efface the distinction be- 
tween men and, 14, 193 ; 
instances of their criminal 
prosecution, 16, i8, 21, 

37-50. 93-124. 134-157, 
160-163 ; methods of 
procedure against, 31 ; 
whether legally laity or 
clergy, 32 ; punitive and 




preventive prosecution of, 
33 ; their consciousness of 
right and wrong, 35, 247 ; 
false conception of the 
purpose of their prose- 
cution, 40 ; can be an- 
athematized, but not ex- 
communicated, SI ; items 
of expense in prosecuting, 
49, 138, 140-143; not mere 
machines, 66 ; in folk-lore, 
84 ; worship of, 85 ; im- 
perfect lists of prosecuted, 
'35-137 ; burned and 
buried alive, 138 ; put to 
the rack to extort confes- 
sion, 139; confiscation of 
valuable, 164, 189; un- 
clean flesh of executed, 
169 ; imputed criminality 
of, 177 ; criminals as 
ferocious, 212 ; mental and 
moral qualities of men 
and, 234 ; six categories 
of their criminal offences, 
235 ; the safety of society 
the supreme law in the 
judicial punishment of 
men and, 247-252 

Anatolus, his " Geoponics,'' 

Angel, Emile, cited, 124 

Anglo-Saxon law, its retri- 
butive character, 168 ; its 
cruel doctrine of acces- 
sories, 178 ; on tainted 
swords, 187 

Angro-mainyush, 57, 59, 61, 

Anthony, St., patron of pigs, 

Anthropologists, criminal 
researches ofi 211, 215 

Aquinas. See Thomas 

Arcadius, his atrocious edict, 

Ashes, modem and mediasval 
use of vermifugal, 53 

Augrustine, St., cited, 94, 106 

Aura corrumfiens in houses 
and stalls, 8 

Aurelian, Father, on dia- 
bolical possession, 75 

Avesta, on exorcisms, 36 ; 
on good and evil creations, 
57 ; on mad dogs, 176 

Ayrault, Pierre, his protest 
against animal prosecu- 
tions, 109 

Azpilcueta, Martin. See Dr. 

Baal-zebub (Beelzebub), 
fly-god, 84 ; his preference 
for black beasts, 165 

Bailly, Gaspard, his Traiti 
des Monitoires cited, 52, 

" Basilisk-egg," 10 

Basilius, St., his insect-ex- 
pelling girdle, 136 

Basilovitch, Ivan, his con- 
ception of retributive jus- 
tice, 183 

Bassos, Kassianos, prefers 
rat-bane to adjuration, 132 

Beasts, sweet and stenchy, 


Bees, tainted honey of homi- 
cidal, 9 

Bell, banished to Siberia by 
the Russian Government, 

Benedikt, Prof., on the brain- 
formation of criminals 



Bernard, Claude, his idea of 
the physiologist, 245 

Bernard, St., kills flies by 
cursing them, 28 

Bernardes, Manoel, his Nova 
Floresta, 124 

Berriat-Saint-Prix, his valu- 
able researches, 2, 17, 20 ; 
list of prosecuted animals, 


Bichat, his defective cranium, 

Bischofberger, Dr. Theobald, 
his curious theory of the 
effects of unexpiated crime 
on persons and property, 
6-8 ; his recent brochure 
in defence of exorcisms, 


Bischoff, Prof., his hobby 
refuted by the weight of 
his own brain, 218 

Blackstone, on deodands, 
186, 189, 192 

Blood-letting, as a panacea 
in law and medicine, 194 

" Blue Laws," an advance in 
penal legislation, 209 

Bodelschwingh, his bacillus 
inf emails, 91 

Boehme, Jacob, his definition 
of magic, 127 

Boer, Nicolaus, on cohabita- 
tion with a Jewess as 
sodomy, 153 

Bogos, homicidal beasts exe- 
cuted by the, 155 

Bonnivard, Frangois, pre- 
sides as judge in a trial 
of vermin, 38 

Borromeo, Carlo, his cruelty 
in punishing heresy, 208 

Bougeant, P^re, his Amuse- 

ment Philosophique cited, 
66-69 ; 80-86, 88-90, 92 

Bracton, 167 ; on deodands, 

Brain, its size not always 
a measure of mental 
capacity, 217-219 

Browne, Dr. WiUiam Hand, 
cited, 187 

Buggery, instances of this 
"nameless crime," 147- 
153 ; she-ass acquitted 
and man condemned to 
death for, 150 ; in the 
Carolina punished with 
death by fire, 151 ; in the 
Mosaic law, 152; sexual 
intercourse with a Jewess 
regarded as, 1 53 

Bull, executed for murder, 

Calvin, his conception of 
God, 59 

Canute, King, 178 

Carolina, the, its severe 
penalties, 182 

Carpzov, Benedict, on sodo- 
my, 151 

Cattle, bewitched by bad 
air, 8 

Cervantes, 167 

Character, factors in the 
formation of, 219 ; respon- 
sibility for, 239, 243 

Charcot, Dr., on the curative 
power of faith, 80, 225 

Chassende, Bartholomew, his 
Consilia, 2, 21-23 > dis- 
tinguished as a defender 
of prosecuted rats, 18 ; 
equal rights of rats and 
Waldenses recognized by, 



20 ; his erudition, 24 ; his 
absurd deductions, 26 ; 
regards animals as laity 
in the eye of the law, 32 

Chinese, recent beheading 
of idols for murder, 174 

Church, the, its treatment 
of noxious insects as incar- 
nations of Satan and as 
agents of God, 3-6 ; capital 
punishment never inflicted 
by, 31 ; its power to stay 
the ravages of vermin un- 
questioned, 50 

Cicero, cited, 22, loi ; his 
approval of atrocious 
penalties, 178 

Cock, burned at the stake 
for laying eggs, 10, 11, 
162 ; nature and origin of 
its supposed eggs, 163-5 

Cockatrice, 12, 163 

Coleridge, his definition of 
madman, 228 

Corpses, prosecuted and exe- 
cuted, no, 198, 199; can- 
not inherit, no 

"Corruption of blood," in 
theology and law, 181 

Courcelle-Seneuil, his view 
of prisons, 212 

Cows, executed for homicide, 

Cranks, execution of, 249- 

Cretella, 17 

Cretins, their brains not 
always abnormal, 219 ; 
sentenced to death, 251 

Criminality, examples of im- 
puted, 177-185 ; ancient 
and mediaeval conceptions 
of, 200 ; punished for the 

safety of society, 211, 248 ; 
compared to vitriol, 212 ; 
supposed physical indices 
of, 213-217 ; casual and 
constitutional, 214-223 ; 
ativism the source of, 212, 
215 ; the result of hypnot- 
ism, 223-225 ; due to many 
uncontrollable conditions, 
230 ; motives underlying 
animal, 235 ; animals con- 
scious of, 247 ; contagfious- 
ness of, 252, 256 

CroUanza, his record of the 
prosecution of caterpillars, 

Crosiers, vermifugal eflScacy 
of, 30 

Cybele, invoked against 
vermin, 133 

Damhouder, Jacobus, 

picture of animal crimes 
in his Rerum. Criminalium 
Praxis, 16 ; citations from 
this work, 109, 146 ; regards 
sexual intercourse with 
Jews, Turks, and Saracens 
as sodomy, 153 

Dasturs, Parsi, Zarathushtra's 
teachings degraded by the, 

Demosthenes, cited, 172 
D eodands, nature of, 1 86-1 90, 
192 ; aboUshed in England 
under Queen Victoria, 192 
DevilSjtheirdamage to landed 
property, 7 ; multipUed by 
the spread of Christianity, 
13, 80 ; destined to eternal 
torments after the Last 
Judgment, 68-70; incar- 
nate in every babe, 70; 



maladies produced by, 72 ; 
modern inventions the de- 
vices of, 229 
Didymos, his "Geoponics," 

Dimitri, Prmce, bell banished 

to Siberia for rejoicing over 

his assassination, 175 
Dogs, trial and execution of 

mad, 176; crucified in 

Rome for imputed crime, 

Dopier, Jacob, on sodomy, 

152 ; on Lex talionis, 182 ; 

on vampires, 197 
Dove, symbol of the Holy 

Ghost, 57 
Draco (Drak6n), his law 

punishing weapons, 172 
Dreyfus, his prosecution in- 
stigated by a sensational 

novel, 253-255 
Ducol, Pierre, prosecutor of 

weevils, 38 
Dumas, his Count of Monte 

Christo cited, 240 
Duret, Jean, his Treatise on 

Pains and Penalties, 108 

Ecclesiastical tribunal, 
an, rejects the Mosaic law 
and discusses crime from 
a psychiatrical point of 
view, 170 

Eldrad, St., expels serpents, 

Electricity, execution by, 

Elk, as demon, 90 
Erechtheus, punishment of 

deadly weapons, 172 
Erinnys, appeasing the, 174 
Escheat, in Scotch lawj 189 

Eusebius, describes hell as 
very cold, 105 

Eustace, St., 56 

Evolution, dogma of original 
sin supplanted by the 
doctrine of, 232 

Excommunications, pro- 
nounced against insects 
by the Church, 3 ; sold at 
Rome, 30 ; properly speak- 
ing, animals not subject to, 
51, 100; comical survivals 
of, 128. See Anathemas 

Exorcisms, their efficiency 
recognized by Heidelberg 
professors, 27 ; applied as 
plasters, 72 ; superseded 
by conjurations among 
Protestants, 125 ; by Mo- 
hammedans, 137 

Falcon, Pierre, defender of 

weevils, 38 
Felo de se, a sort of treason, 

190. See Suicide 
Feuchtersleben, Baron Von, 

records cases of morbid 

imitation, 253 
Field-mice, conjuration of, 

Flesh of executed animals 

tainted, 169 
Flies as demons, 28, 86 
Florian, St., the protector of 

houses from fire, 136 
Fly-flaps, papal, 29 
Formosus, Pope, his corpse 

tried and condemned for 

usurpation, 198 
Foscolo, Ugo, his cranium 

that of an idiot, 218 
Fox, diabolical nature of the 




Frederic the Great, his 
penal reforms, 207 

Fricker, Thiiring, doctor of 
laws, chancellor and prose- 
cutor of inger, ii6 

Gadflies, episcopal rescript 
against, 124 

Galton, on heredity, 239 

Gambetta, his small and 
abnormal brain, 217 

Geese, sacred, rewarded at 
Rome for the vigilance of 
their foremothers, 177 

Genius, to madness close 
allied, 228 

Gorres, recent case of con- 
juration recorded by, 125 

Gratiolet, on the brain of 
the "Hottentot Venus," 

Greeks, ancient, ascribed 
pestilence to the miasma 
of unexpiated murder, 9, 

Gregory of Tours, on bronze 
dormice and serpents as 
talismans, 132 

Greysser, Daniel, the effici- 
ency of bans not super- 
natural, 128 

Gross, his mis-statement con- 
cerning the cock of Bile, 

Guiteau, deterrent effect of 
his execution, 250 

Harpokration, Valerius, 

cited, 172 
Harrison, Miss, cited, 187 
Hart, symbolism of the, 56 
Hawks, dead, as protectors 

of hens, 252 

Hemmerlein, Felix. See 

Hens, crowing, 10 

Heredity, its predetermining 
influence as viewed by 
theologians and scientists, 

Heymanns, Mynheer, on re- 
sponsibility for character, 

Hierarchies, their failure in 

civil government, 249 
Honorius, his atrocious edict, 

Horses, condemned to death 

for homicide, 162 
Hubert, St., 56 
Hugon, St., expels venom 

from serpents by excom- 
munication, 103 
Hunters among savages, their 

superstitious fear of killing 

wild animals, 174 
Hypnotism, its causal relation 

to crime, 223-226 ; as the 

basis of the witchcraft 

delusion, 225 

Idols, decapitation of, 174 

Inger, prosecuted and put 
under ban, 113-115; not 
in Noah's Ark, 120 

Insanity, degrees of, 200-203 ; 
in Italian and German law, 
204-306 ; difficulty of de- 
fining, 226-228 ; in English 
law, 246; moral, 250 j as 
a shelter for crime, 256 

Insects, prosecution of, 37, 
41-49 ; incarnations of 
demons, 86 

Italy, palhation of crime in, 
203, 204 



JEANNERET, Marie, her toxi- 
comania, 240-246 
Jews, in Christian legislation 

on a par with beasts, 152, 

John the Lamb, his curse 

fatal to fish, 28 
Jonson, Ben, cited, 130 
Jordan, Father, casts out 

devils with Lourdes water 

in 1887, 74 
Jorgensen, cited, 17 
Joshua, his penal cruelty, 


King Mode, his discourse 
with Queen Reason, 55 

Kirchenheim, Prof. Von, 
urges reform of our penal 
codes, 219 

Koran, the, on the punish- 
ment of beasts, 171 

Kukis, destroy homicidal 
trees, 171 

LAAS,his definition of judicial 
punishment, 238 

Lacassagne, his six categories 
of crime, 235 

Langevin, Pierre Gilles, 
fresco of the execution of 
a sow described by, 141 

Lapeyronie, his dissertation 
proving that cocks never 
lay eggs, 163 

Le Bon, on hereditary crimin- 
ality, 223 

Leipsic, decision of the Law 
Faculty concerning a homi- 
cidal cow, 169 

Leo XI IL, his exorcism of 
Satan and apostate angels, 

Letang, Louis, causal relation 
of his novel to the Dreyfus 
affair, 254 

Lex talionis, striking applica- 
tions of this oldest form of 
penal justice, 167 ; inflicts 
horrible mutilations, 182 

Lilienberg, Mathias Abele 
Von, his record of a dog 
sentenced to prison, 175 

Liszt, Prof. Von, on retributive 
and preventive penalties, 


Locusts, expelled by exor- 
cisms and aspergeoires, 3, 
64 ; dispersed and de- 
stroyed by excommunica- 
tion, 22, 93, 94 ; prosecution 
of, 95-108, 136 

Lohbauer, Pater Franz 
Xaver, [ascribes nervous 
disease to diabolical 
possession, 71 

Lombroso, on animals as 
born criminals, 14 ; op- 
posed to trial by jury, 185 ; 
regards tattooing, dark 
thick hair and thin beards, 
as signs of criminality, 213 ; 
on ativism as the source of 
crime, 215 ; innate crimin- 
ality not eradicated by 
education, 223 ; compares 
the capital punishment of 
cretins and cranks to that 
of animals, 251 

Lucifer, writhes under the 
water of Lourdes, 74 

Lycia, punished by imputa- 
tion, 180 

Majolus, cited, 86 
Maledictions. 5«« Anathemas 



Malleolus, Felix, his theory 
of exorcisms endorsed by 
Heidelberg professors, 27 ; 
records a prosecution of 
Spanish flies, 1 10 ; his 
formula for banning 
serpents, 121 

Mangin, Arthur, cited, 16, 

Manicheans, their doctrine 

of good and evil, 60 
Manouvrier, Dr., likens 

Gambetta's skull to that of 

a savage, 217 
Mantegazza, Prof., his 

" tormentatore," 245 
Manu, Institutes of, 168 
Marro, on metaphors as facts, 

Mather, Cotton, records the 

execution of a pious 

Sodomite and eight beasts, 

M6nebr6a, M. L., 2, 17 ; 

his theory untenable, 

Mephistopheles, the lord of 

rodents and vermin, 85 
Mithridates, experiments 

with poisons, 244 
Moles, prosecution of, iii- 


Monks, as landed proprietors 

in France, 158 
Monomania, frequency of, 

Morel, Claude, defender of 

weevils, 38 
Mornacius, his record of mad 

dogs sentenced to death, 

Morselli, Prof., on the causes 

of suicide, 229 

Mosaic law, the, rejected by 
an ecclesiastical court, 170 ; 
barbarity of, 167, 180 

Murder, miasma of, 9, 174 ; 
weapons tainted by, 187- 

Mutilations, in accordance 
with the Lex talionis, 176, 

Mythology, monstrosities and 
metamorphoses of classi- 
cal, 64 ; in modem life, 228 

Naquet, regards criminals 
as no more culpable than 
poisons, 212. 

Narrenkotterlein, dog sen- 
tenced to a, 17s 

Nature, imperfection of, 61 

Navarre, Dr., regards fish as 
cacodemons, 90 

Nebuchadnezzar, a satanic 
metamorphosis, 63 

Nik6n, his statue punished 
for manslaughter com- 
mitted in self-defence, 

Noah, God's covenant with 
him required the capital 
punishment of beasts, 168 

Novels, morbific influence of 
sensational, 253 

Numa Pompilius, quoted, 
106 ; his law for protecting 
boimdary stones, 183 

Origen, believed in the 

ultimate redemption of 

Satan, 68 
Osenbriiggen, Eduard, his 

theory of the personification 

of animals, 10, 17 
Ovid, quoted, loi, 103 



Oxen, executed, i68 ; pun- 
ished although innocent, 

PACHACUTEZ,barbarous code 
of this Peruvian Justi- 
nian, 179 

Papal See, trial and punish- 
ment of corpses by the, 198 

Pape, Guy, cited, 108 

Paracelsus, on the magnetic 
power of the will, 126 

Pardoning power, exercise of 
the, 248 

Parsis, their Dasturs, 59 ; 
co-workers of Ahuramazda, 
61, 82 ; no doctrine of 
atonement, 63 

Pasteur, exterminates noxious 
microbes, 62 

Patriotism as a perverter of 
justice, 185 

Pausanias cited, 172 

Penology, man and beast in 
modern, 14, 193; medieval 
and modern, 15, 200, 206- 
210 ; in Italy and Germany, 
203-206; brutality of med- 
iaeval, 206-209 ; moral and 
penal responsibility, 210 ; 
still inchoate, 15, 219-223, 
257 ; deterrent aims of, 2 1 1, 
248, 249 ; law of the sur- 
vival of the fittest in, 221- 
223 ; punitive and preven- 
tive, 237 ; its relation to 
psycho-pathology, 248 

Pereira Gomez, forerunner of 
Descartes, 66 

Perjury, retaliative punish- 
ment of, 182 

Perrodet, Jean, defender of 
inger, 118 

Phlebotomy. See Blood- 

Pico di Mirandola, quoted, 

Piety, market value of, 7 

Pigs. See Swine 

Pirminius, St., his anathema 
of venomous reptiles, 29 

Plato, his theory of creation, 
59 ; on homicidal animals, 
173; on retributive and 
preventive punishment, 


Pliny, quoted, 103 

Pollux, Julius, quoted, 172 

Potter, a pious Sodomite 
executed, 148 

Predestination in theology 
and science, 232-234 

Prussia, barbarous punish- 
ments, 1 80 ; opposed to 
reform, 205 

Prytaneion(Prytaneum), con- 
demned inanimate objects 
for crime, 172 ; but not 
corpses, 199 

Pufendorf, Samuel, on con- 
tagiousness in crime, 256 

Puritans, their penal enact- 
ments, 209 

Pythagoras, his doctrine of 
transmigration, 87 

Queen Reason, her dis- 
course on animals in reply 
to King Mode, 56-58 

Racine, his caricature of 

beast trials in Les Plai- 

deurs, 166, 361 

Ram, banished to Siberia, 175 

Randolph, his allusion to 

rhyming rats, 130 



Rats, prosecution of, 18-21, 
1 36 ; friendly letters of 
advice to, 129 ; Irish cus- 
tom of rhyming, 130 

Raven, an imp of Satan, 57 

Renaud d'AUeins, on equal 
rights of Waldenses and 
rats, 20 

Responsibility, moral and 
penal, 210 

Reusch, Prof. Dr. Fr. Hein- 
rich, denounces bishops 
as promoters of super- 
stition, 14 

Ro-ro-ro-ro, an anti-semitic 
devil cast out in 1842, 

Rosarius, Hierolymus, de- 
scribes the exposure of 
crucified lions and gibbeted 
wolves as a warning to 
their kind, 251 ; regards 
animals as often more 
rational than men, 252 

Satan, his earthly sove- 
reignty, 60, 70 ; the doc- 
trine of his final redemp- 
tion, 68 

Schilling, on the prosecution 
of inger, 113, 120 

Schlager, cited, 176 

Schleswig, its punishment of 
homicidal timber, 187 

Schmid, Bernard, his sermon 
on the devastations by 
inger, 113-115 

Scholasticism, quiddities of, 

Schopenhauer, his theory of 
the will, 127 ; man's re- 
sponsibility for character 
alone, 239, 243 

Schwabenspiegel, barbarity 
of this old German code, 

Schwarz Mining, prosecutor 
of moles, 112 

Schweinfurter Sauhenker, 
origin of the term, 147 

Serpents, destroyed by St. 
Eldrad, 51 ; freed from 
poison by St. Hugon, 

Shakespeare, alludes to " be- 
rhymed" rats, 130 ; and a 
wolf on the gallows, 1 57 

Silius Italicus, quoted, 103 

Simon, Max, on the morbid 
spirit of imitation, 253 

Sociology, 'its influence on 
criminal jurisprudence, 238 

Socrates, on self-perfection, 


Sodomy. See Buggery 

Soldan, cited, 17 

Sparrows, put under ban 
by a Protestant parson, 

Stephen VI., Pope, adjures 
locusts, 65 ; prosecutes the 
corpse of his predecessor, 
198 ; strangled in prison, 

Suicide, punishment of the 
wife and children of a, 
190 ; condemned as a 
crime and also recognized 
as a right, 191, 192 ; due 
to manifold influences, 

Superstition, fostered by 
bishops and Jesuits, 14 

Swallows, anathematized for 
chattering in church, 28 

Swine, execution of, 16, 140- 




as stenchy beasts pecu- 
liarly attractive to devils, 
56, 165 ; Gadarene, 69, 91, 
Swords, tainted, 187 

Taine, his definition of man, 

Tarda, defines the mob as a 
mad beast, 236 

Tatian, his fellow-citizens 
punished for his offences, 

Tattooing, not peculiar to 
criminals, 213 

Termites, prosecuted by 
Franciscans in Brazil and 
praised by their defender 
as more industrious than 
the friars, 123 

TertuUian, quoted, 106 

Theognis, his bust punished 
for murder, 172 

Thomas k Becket, his bones 
burned by Henry VIII., 

Thomas Aquinas, regarded 
animals only as diabolical 
incarnations, 53-55, 88, 
loi, 103 

Thumeysser, his bottled 
scorpions and elk feared 
as demons, 90 

Tithes, importance of the 
prompt payment of, 37, 94, 

Tobler, G., on animal pro- 
secutions in Switzerland, 
I, 170 

Treason, barbarously pun- 
ished by Roman, Prussian, 
and Judaic law, 179-181 

Trench, Richard Chevenix, 

his justification of the 

cursing of the fig-tree, 25 
Treufels, Richard, his belief 

in the exorcism at Wem- 

ding in 1891, 75 
Tribunals, proper office of 

criminal, 211, 232, 248 
Tritheim, on Satan's invisible 

apparition, 166 
Tschech, executed, and his 

innocent daughter exiled 

for his crime, 179 
Tiirler, records the rejection 

of the Mosaic law by the 

ecclesiastical court of 

Berne, 170 

Vampires, superstitions con- 
cerning, 195-198 

Vendetta, in semi-civilized 
communities, 178 

Venidad, quoted, 63 

Ventilation, " bewitched 
kine " the result of bad, 8 

Vermin. See Insects 

Virgil, quoted, 26 

Wkevils, prosecuted for 
damage to vineyards, 38- 

Wemding, recent case of 
diabolical possession in, 


Were wolves, incarnate 
ghosts, 195 ; decree for 
their extermination, 198 

Werther, Goethe's, senti- 
mentalism and suicidism 
produced by, 253 

Winterstetter, Georg, his 
rescript concerning gad- 
flies, 125 



Witches in Judaic and me- 
diaeval law, on a par with 
animals, 145 ; rendered 
harmless by burning, 

Worms, Council of, its decree 
concerning tainted honey, 

Zarathushtra (Zoroaster), 
his ethics and its workings, 

Zoopsychology, in its relation 

to anthropopsychology and 

criminology, 237 
Zupetta, on partial vitiation 

of mind, 201 

Richard Clay &* Sons^ Limited, London and Bungay.